|
|
|
|
Legal Resources
Business Contracts
MCLE Courses
Projects
Friends
|
Sample Business ContractsHome: Sample Business Contracts:
--------------------------------------------------------------------------------
SECURITIES PURCHASE AGREEMENT
BY AND AMONG
AVIALL, INC.
AVIALL SERVICES, INC.
J. H. WHITNEY MEZZANINE FUND, L.P.
WHITNEY PRIVATE DEBT FUND, L.P.
WHITNEY LIMITED PARTNER HOLDINGS, LLC
BLACKSTONE MEZZANINE PARTNERS L.P.
BLACKSTONE MEZZANINE HOLDINGS L.P.
CARLYLE HIGH YIELD PARTNERS, L.P.
OAK HILL SECURITIES FUND, L.P.
OAK HILL SECURITIES FUND II, L.P.
LERNER ENTERPRISES, LP
AND
P & PK LIMITED PARTNERSHIP
DATED AS OF DECEMBER 17, 2001
----------
--------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
PAGE
----
ARTICLE 1 DEFINITIONS 2
1.01 DEFINITIONS 2
1.02 ACCOUNTING TERMS: FINANCIAL STATEMENTS 13
1.03 KNOWLEDGE OF THE BORROWER 14
ARTICLE 2 PURCHASE AND SALE OF THE SECURITIES 14
2.01 PURCHASE AND SALE OF THE WMF NOTE 14
2.02 PURCHASE AND SALE OF THE WHITNEY DF NOTE 14
2.03 PURCHASE AND SALE OF THE WHITNEY LLC NOTE 14
2.04 PURCHASE AND SALE OF THE BLACKSTONE PARTNERS NOTE 14
2.05 PURCHASE AND SALE OF THE BLACKSTONE HOLDINGS NOTE 14
2.06 PURCHASE AND SALE OF THE CARLYLE NOTE 14
2.07 PURCHASE AND SALE OF THE OAK HILL NOTE 15
2.08 PURCHASE AND SALE OF WMF EQUITY 15
2.09 PURCHASE AND SALE OF WHITNEY DF EQUITY 15
2.10 PURCHASE AND SALE OF WHITNEY LLC EQUITY 15
2.11 PURCHASE AND SALE OF BLACKSTONE HOLDINGS EQUITY 15
2.12 PURCHASE AND SALE OF BLACKSTONE PARTNERS EQUITY 15
2.13 PURCHASE AND SALE OF CARLYLE EQUITY 15
2.14 PURCHASE AND SALE OF OAK HILL EQUITY 15
2.15 FEES AT CLOSING 15
2.16 CLOSING 15
2.17 EQUITY CLOSING 16
i
<PAGE>
ARTICLE 3 CONDITIONS TO THE RESPECTIVE 16
3.01 REPRESENTATIONS AND WARRANTIES 16
3.02 COMPLIANCE WITH THIS AGREEMENT 16
3.03 SECRETARY'S CERTIFICATES FOR BORROWER 16
3.04 SECRETARY'S CERTIFICATES FOR HOLDINGS 17
3.05 DOCUMENTS 17
3.06 PURCHASE OF SECURITIES PERMITTED BY APPLICABLE LAWS 17
3.07 OPINION OF COUNSEL 17
3.08 APPROVAL OF COUNSEL TO THE PURCHASERS 17
3.09 CONSENTS AND APPROVALS 17
3.10 REGISTRATION RIGHTS AGREEMENT 18
3.11 NO JUDGMENT OR ORDER 18
3.12 AS ADJUSTED BALANCE SHEET 18
3.13 GOOD STANDING CERTIFICATES 18
3.14 NO LITIGATION 18
3.15 FEES, ETC. 18
3.16 FINANCINGS, ETC. 18
3.17 GUARANTY. 19
3.18 ADVERSE CHANGE, ETC. 19
3.19 SOLVENCY CERTIFICATE; INSURANCE 19
3.20 CONSENTS PRIOR TO OR CONTEMPORANEOUS WITH THE CLOSING DATE 19
ARTICLE 4 CONDITIONS TO THE OBLIGATIONS 19
4.01 REPRESENTATIONS AND WARRANTIES 20
4.02 COMPLIANCE WITH THIS AGREEMENT 20
4.03 CLOSING OF TRANSACTIONS AND ROLLS ROYCE DISTRIBUTION SERVICES AGREEMENT 20
ii
<PAGE>
4.04 SALE OF NOTES PERMITTED BY APPLICABLE LAWS 20
4.05 NO LITIGATION 20
4.06 NO MATERIAL JUDGMENT OR ORDER 20
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF HOLDINGS AND THE BORROWER 21
5.01 CORPORATE EXISTENCE AND POWER 21
5.02 CORPORATE AUTHORIZATION; NO CONTRAVENTION 21
5.03 GOVERNMENTAL AUTHORIZATION; THIRD PARTY CONSENTS 21
5.04 BINDING EFFECT. 22
5.05 NO LEGAL BAR 22
5.06 LITIGATION. 22
5.07 COMPLIANCE WITH LAWS 22
5.08 NO DEFAULT OR BREACH 22
5.09 TITLE TO PROPERTIES 23
5.10 USE OF REAL PROPERTY 23
5.11 TAXES 24
5.12 SEC REPORTS; FINANCIAL CONDITION 25
5.13 [INTENTIONALLY OMITTED] 26
5.14 DISCLOSURE 27
5.15 ABSENCE OF CERTAIN CHANGES OR EVENTS 27
5.16 ENVIRONMENTAL MATTERS 27
5.17 INVESTMENT BORROWER/GOVERNMENT REGULATIONS 28
5.18 SUBSIDIARIES 28
5.19 CAPITALIZATION 29
5.20 PRIVATE OFFERING 30
iii
<PAGE>
5.21 BROKER'S, FINDER'S OR SIMILAR FEES 30
5.22 LABOR RELATIONS 30
5.23 EMPLOYEE BENEFIT PLANS 30
5.24 PATENTS, TRADEMARKS, ETC 32
5.25 POTENTIAL CONFLICTS OF INTEREST 32
5.26 TRADE RELATIONS 33
5.27 FINANCIAL POSITION 33
5.28 MATERIAL CONTRACTS 33
5.29 INSURANCE 34
5.30 PRODUCTS LIABILITY 34
5.31 SOLVENCY 34
5.32 LOCATION OF ASSETS 34
5.33 CHANGE OF CONTROL PAYMENTS 34
5.34 FOREIGN ASSETS CONTROL REGULATIONS, ETC 34
5.35 MARGIN REQUIREMENTS 34
5.36 GOVERNMENT CONTRACTS 35
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS 35
6.01 AUTHORIZATION; NO CONTRAVENTION 35
6.02 BINDING EFFECT 35
6.03 NO LEGAL BAR 36
6.04 PURCHASE FOR OWN ACCOUNT 36
6.05 BROKER'S, FINDER'S OR SIMILAR FEES 36
6.06 GOVERNMENTAL AUTHORIZATION; THIRD PARTY CONSENT 36
6.07 EXISTENCE AND POWER 36
6.08 LITIGATION 36
iv
<PAGE>
ARTICLE 7 INDEMNIFICATION 37
7.01 INDEMNIFICATION 37
7.02 PROCEDURE; NOTIFICATION 38
7.03 REGISTRATION RIGHTS AGREEMENT 38
ARTICLE 8 AFFIRMATIVE COVENANTS 38
8.01 FINANCIAL STATEMENTS AND OTHER INFORMATION 38
8.02 PRESERVATION OF CORPORATE EXISTENCE 41
8.03 PAYMENT OF OBLIGATIONS 41
8.04 COMPLIANCE WITH LAWS 41
8.05 RESERVATION OF SHARES 41
8.06 INSPECTION 42
8.07 PAYMENT OF NOTES 42
8.08 INSURANCE 42
8.09 BOOKS AND RECORDS 42
8.10 USE OF PROCEEDS 42
8.11 BOARD OBSERVATION RIGHTS 42
ARTICLE 9 MAINTENANCE AND NEGATIVE COVENANTS 43
9.01 MAXIMUM LEVERAGE RATIO 43
9.02 MINIMUM INTEREST COVERAGE RATIO 43
9.03 MINIMUM EBITDA 44
9.04 MAINTENANCE OF TANGIBLE NET WORTH 44
9.05 CAPITAL EXPENDITURES 44
9.06 INDEBTEDNESS 45
9.07 LIMITATION ON LIENS 46
9.08 SALE OF ASSETS 47
v
<PAGE>
9.09 RESTRICTED PAYMENTS 48
9.10 RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS 48
9.11 MARGIN REGULATIONS 48
9.12 SALE/LEASEBACKS 49
9.13 CHANGE IN NATURE OF BUSINESS 49
9.14 RESTRICTION ON FUNDAMENTAL CHANGES 49
9.15 PERMITTED DISTRIBUTION AGREEMENTS 49
9.16 INVESTMENTS 49
9.17 TRANSACTIONS WITH AFFILIATES 50
9.18 COMPLIANCE WITH ERISA 51
ARTICLE 10 PREPAYMENT 51
10.01 OPTIONAL PREPAYMENT 51
10.02 MANDATORY PREPAYMENT 51
ARTICLE 11 MISCELLANEOUS 51
11.01 SURVIVAL OF REPRESENTATIONS AND WARRANTIES 51
11.02 TERMINATION 51
11.03 NOTICES 52
11.04 SUCCESSORS AND ASSIGNS 54
11.05 AMENDMENT AND WAIVER 55
11.06 SIGNATURES; COUNTERPARTS 55
11.07 HEADINGS 55
11.08 GOVERNING LAW 56
11.09 DETERMINATIONS, REQUEST OR CONSENTS 56
11.10 JURISDICTION, JURY TRIAL WAIVER, ETC 56
11.11 SEVERABILITY 56
vi
<PAGE>
11.12 RULES OF CONSTRUCTION 57
11.13 ENTIRE AGREEMENT 57
11.14 CERTAIN EXPENSES 57
11.15 PUBLICITY 57
11.16 FURTHER ASSURANCES 57
11.17 OBLIGATIONS OF THE PURCHASERS 57
11.18 NO STRICT CONSTRUCTION 58
11.19 PAYMENT FOR CONSENT 58
11.20 CONFIDENTIALITY 58
11.21 PRIOR NOTIFICATION 59
vii
<PAGE>
SECURITIES PURCHASE AGREEMENT
AGREEMENT, dated as of December 17, 2001, by and among Aviall
Services, Inc. (the "BORROWER"), a Delaware corporation, Aviall, Inc.
("HOLDINGS"), a Delaware corporation, J. H. Whitney Mezzanine Fund, L.P.
("WMF"), a Delaware limited partnership, Whitney Private Debt Fund, L.P.
("WHITNEY DF"), a Delaware limited partnership, Whitney Limited Partner
Holdings, LLC ("WHITNEY LLC" and together with WMF and Whitney DF, the "WHITNEY
FUNDS"), a Delaware limited partnership, Blackstone Mezzanine Partners L.P.
("BLACKSTONE PARTNERS"), a Delaware limited partnership, Blackstone Mezzanine
Holdings L.P. ("BLACKSTONE HOLDINGS" and together with Blackstone Partners,
"BLACKSTONE"), a Delaware limited partnership, Carlyle High Yield Partners,
L.P., a Delaware limited partnership ("CARLYLE") and Oak Hill Securities Fund,
L.P., Oak Hill Securities Fund II, L.P., Lerner Enterprises, LP and P&PK Limited
Partnership, each a Delaware limited partnership (collectively, "OAK HILL"). The
Whitney Funds, Blackstone, Carlyle and Oak Hill are sometimes referred to herein
individually, as a "Purchaser" and collectively, as the "PURCHASERS."
WITNESSETH:
WHEREAS, (i) the Borrower wishes to sell to WMF, and WMF
wishes to purchase from the Borrower a six year senior promissory note (the "WMF
NOTE"), in the principal amount set forth on Schedule 2.15, and (ii) Holdings
wishes to sell to WMF, and WMF wishes to purchase from Holdings the shares of
Common Stock set forth on Schedule 2.15 ("THE WMF EQUITY"), in each case upon
the terms and subject to the conditions hereinafter set forth; and
WHEREAS, (i) the Borrower wishes to sell to Whitney DF and
Whitney DF wishes to purchase from the Borrower a six year senior promissory
note (the "WHITNEY DF NOTE"), in the principal amount set forth on Schedule
2.15, and (ii) Holdings wishes to sell to Whitney DF, and Whitney DF wishes to
purchase from Holdings the shares of Common Stock set forth on Schedule 2.15
(the "WHITNEY DF EQUITY"), in each case upon the terms and subject to the
conditions hereinafter set forth; and
WHEREAS, (i) the Borrower wishes to sell to Whitney LLC and
Whitney LLC wishes to purchase from the Borrower a six year senior promissory
note (the "WHITNEY LLC NOTE"), in the principal amount set forth on Schedule
2.15, and (ii) Holdings wishes to sell to Whitney LLC, and Whitney LLC wishes to
purchase from Holdings the shares of Common Stock set forth on Schedule 2.15
(the "WHITNEY LLC EQUITY"), in each case upon the terms and subject to the
conditions hereinafter set forth; and
WHEREAS, (i) the Borrower wishes to sell to Blackstone
Partners, and Blackstone Partners wishes to purchase from the Borrower a six
year senior promissory note (the "BLACKSTONE PARTNERS NOTE"), in the principal
amount set forth on Schedule 2.15, and (ii) Holdings wishes to sell to
Blackstone Partners, and Blackstone Partners wishes to purchase from Holdings
the shares of Common Stock set forth on Schedule 2.15 (the "BLACKSTONE PARTNERS
EQUITY"), in each case upon the terms and subject to the conditions hereinafter
set forth; and
WHEREAS, (i) the Borrower wishes to sell to Blackstone
Holdings, and Blackstone Holdings wishes to purchase from the Borrower a six
year senior promissory note (the "BLACKSTONE HOLDINGS NOTE"), in the principal
amount set forth on Schedule 2.15, and (ii) Holdings wishes to sell
1
<PAGE>
to Blackstone Holdings, and Blackstone Holdings wishes to purchase from Holdings
the shares of Common Stock set forth on Schedule 2.15 (the "BLACKSTONE HOLDINGS
EQUITY"), in each case upon the terms and subject to the conditions hereinafter
set forth; and
WHEREAS, (i) the Borrower wishes to sell to Carlyle, and
Carlyle wishes to purchase from the Borrower a six year senior promissory note
(the "CARLYLE NOTE"), in the principal amount set forth on Schedule 2.15, and
(ii) Holdings wishes to sell to Carlyle, and Carlyle wishes to purchase from
Holdings the shares of Common Stock set forth on Schedule 2.15 (the "CARLYLE
EQUITY"), in each case upon the terms and subject to the conditions hereinafter
set forth; and
WHEREAS, (i) the Borrower wishes to sell to Oak Hill, and Oak
Hill wishes to purchase from the Borrower those six year senior promissory notes
(collectively, the "OAK HILL NOTE"), in the principal amounts set forth on
Schedule 2.15, and (ii) Holdings wishes to sell to Oak Hill, and Oak Hill wishes
to purchase from Holdings the shares of Common Stock set forth on Schedule 2.15
(the "OAK HILL EQUITY"), in each case upon the terms and subject to the
conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties hereto agree
as follows:
ARTICLE 1
DEFINITIONS
1.01 DEFINITIONS. As used in this Agreement, and unless the context
requires a different meaning, the following terms have the meanings indicated:
"AFFILIATE" means with respect to any Person, any other Person
(a) directly or indirectly controlling, controlled by, or under common control
with such Person, (b) directly or indirectly owning or holding five percent (5%)
or more of any equity interest in such Person, or (c) five percent (5%) or more
of whose voting stock or other equity interest is directly or indirectly owned
or held by such Person. For purposes of this definition, "control" (including
with correlative meanings, the terms "controlling", "controlled by" and under
"common control with") means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
"AFFILIATED GROUP" shall have the meaning set forth in Section
1504(a) of the Code.
"AGREEMENT" means this Agreement, including the exhibits and
schedules attached hereto, as the same may be amended, supplemented or modified
in accordance with the terms hereof.
"AS ADJUSTED BALANCE SHEET" means the as adjusted consolidated
balance sheet of Holdings and its Subsidiaries, delivered pursuant to Section
3.12.
"ASSET SALE" has the meaning specified in Section 9.08 hereof.
"AUSTRALIAN FACILITY" means the credit facility to be entered
into between Aviall Australian Pty Ltd and a lender selected by Borrower as
amended, amended and restated, extended,
2
<PAGE>
supplemented, refinanced or otherwise modified from time to time, including any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including, without limitation by increasing the amount of
available borrowings thereunder) all or any portion of the Indebtedness under
such agreement or any successor or replacement agreement or documents and
whether by the same or any other agent, lender or group of lenders.
"AVAILABILITY AMOUNT" shall have the meaning set forth in
Section 3.16(b) hereof.
"BLACKSTONE" shall have the meaning set forth in the first
clause hereof.
"BLACKSTONE HOLDINGS EQUITY" shall have the meaning set forth
in the fifth Whereas clause hereof.
"BLACKSTONE HOLDINGS NOTE" means the senior promissory note
referred to in the fifth Whereas clause hereof, which note shall be
substantially in the form attached hereto as Exhibit A.
"BLACKSTONE PARTNERS EQUITY" shall have the meaning set forth
in the fourth Whereas clause hereof.
"BLACKSTONE PARTNERS NOTE" means the senior promissory note
referred to in the fourth Whereas clause hereof, which note shall be
substantially in the form attached hereto as Exhibit A.
"BRIDGE PREFERRED STOCK" means the Series B preferred stock of
Holdings having the terms and conditions set forth in the relevant Certificate
of Designation.
"BUSINESS DAY" means any day other than a Saturday, Sunday or
other day on which commercial banks in the City of New York are authorized or
required by law or executive order to close.
"BY-LAWS" means, unless the context in which such term is used
otherwise requires, the By-laws of Holdings or any of its Subsidiaries as in
effect on the Closing Date.
"CANADIAN FACILITY" means the revolving credit facility of
Aviall (Canada) Ltd. as amended, amended and restated, extended, supplemented,
refinanced or otherwise modified from time to time, including any agreement
extending the maturity of, refinancing, replacing or otherwise restructuring
(including, without limitation by increasing the amount of available borrowings
thereunder) all or any portion of the Indebtedness under such agreement or any
successor or replacement agreement or documents and whether by the same or any
other agent, lender or group of lenders.
"CAPITAL EXPENDITURES" means, with respect to any Person for
any period, the aggregate of amounts that would be reflected as additions to
property, plant or equipment on a consolidated balance sheet of such Person and
its Subsidiaries prepared in conformity with GAAP, excluding interest
capitalized during construction.
"CAPITAL LEASE" means, with respect to any Person, any lease
(or other arrangement conveying the right to use) of property by such Person as
lessee that would be accounted for as a capital lease on a balance sheet of such
Person prepared in conformity with GAAP.
3
<PAGE>
"CAPITAL LEASE OBLIGATIONS" means, with respect to any Person,
the capitalized amount of all obligations of such Person or any of its
Subsidiaries under Capital Leases, as determined on a consolidated basis in
conformity with GAAP.
"CARLYLE" shall have the meaning set forth in the first clause
hereof.
"CARLYLE EQUITY" shall have the meaning set forth in the sixth
Whereas clause hereof.
"CARLYLE NOTE" means the senior promissory note referred to in
the sixth Whereas clause hereof, which note shall be substantially in the form
attached hereto as Exhibit A.
"CARLYLE PARTNERS" means Carlyle Partners III, L.P.
"CASH" means the currency of the United States of America.
"CERCLA" has the meaning set forth in the definition of
"Environmental Laws" below.
"CERTIFICATES OF DESIGNATION" means the Certificates of
Designation to the Certificate of Incorporation which set forth the terms,
limitations and relative rights and preferences of the Bridge Preferred Stock,
Mezzanine Preferred Stock, and the Permanent Preferred Stock, substantially in
the forms attached hereto as Exhibit B, C and D.
"CERTIFICATE OF INCORPORATION" means, unless the context in
which it is used shall otherwise require, the Certificate of Incorporation of
Holdings or any of its Subsidiaries as in effect on the Closing Date.
"CLOSING" shall have the meaning assigned to that term in
Section 2.16.
"CLOSING DATE" shall have the meaning assigned to that term in
Section 2.16.
"CODE" means the Internal Revenue Code of 1986, as amended, or
any successor statute thereto.
"COMMISSION" means the Securities and Exchange Commission or
any similar agency then having jurisdiction to enforce the Securities Act.
"COMMON STOCK" means the shares of Common Stock, par value
$.01 per share, of Holdings, or any other capital stock of Holdings into which
such stock is reclassified or reconstituted.
"COMPLIANCE CERTIFICATE" shall have the meaning given in
Section 8.01(c).
"CONDITION OF THE BORROWER" means the assets, business,
properties, prospects, operations or financial condition of Holdings and its
Subsidiaries, taken as a whole.
"CONTRACTUAL OBLIGATIONS" means as to any Person, any
provision of any security issued by such Person or of any agreement,
undertaking, contract, indenture, mortgage, deed of trust or other instrument or
arrangement (whether in writing or otherwise and including, for the avoidance of
doubt, any listing or other agreement with or obligation to, the New York Stock
Exchange) to which such Person is a party or by which it or any of such Person's
property is bound.
4
<PAGE>
"CONVERSION DATE" shall have the meaning set forth in the
Notes.
"CUSTOMARY PERMITTED LIENS" means, with respect to any Person,
any of the following Liens:
(a) Liens with respect to the payment of taxes, assessments or
governmental charges in each case that are not yet due or that are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves or other appropriate provisions are being maintained to the
extent required by GAAP;
(b) Liens of landlords arising by statute and liens of
suppliers, mechanics, carriers, materialmen, warehousemen or workmen and other
liens imposed by law created in the ordinary course of business for amounts not
yet due or that are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves or other appropriate provisions are
being maintained to the extent required by GAAP;
(c) deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance or other types of
social security benefits or to secure the performance of bids, tenders, sales,
contracts (other than for the repayment of borrowed money) and surety, appeal,
customs or performance bonds;
(d) encumbrances arising by reason of zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility easements,
building restrictions and other similar encumbrances on the use of real property
not materially detracting from the value of such real property or not materially
interfering with the ordinary conduct of the business conducted and proposed to
be conducted at such real property;
(e) encumbrances arising under leases or subleases of real
property that do not, in the aggregate over all such encumbrances, materially
detract from the value of such real property or interfere with the ordinary
conduct of the business conducted and proposed to be conducted at such real
property; and
(f) financing statements with respect to a lessor's rights in
and to personal property leased to such Person in the ordinary course of such
Person's business.
"DEFAULT" means any event that with the passing of time or the
giving of notice or both, would become an Event of Default.
"DEFINED BENEFIT PLAN" means a defined benefit plan within the
meaning of Section 3(35) of ERISA or Section 414(j) of the Code, whether funded
or unfunded, qualified or non-qualified and whether or not subject to ERISA or
the Code.
"DISQUALIFIED STOCK" means with respect to any Person, any
Stock that, by its terms (or by the terms of any Security into which it is
convertible or for which it is exchangeable) or upon the happening of any event,
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or is exchangeable for Indebtedness of such Person or is redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
final maturity date of the Notes. Securities issued pursuant to the Equity
Documents (and as in existence on the Closing Date) shall not be deemed
Disqualified Stock.
5
<PAGE>
"EBITDA" shall have the meaning assigned to such term in the
Senior Credit Agreement as in effect on the Closing Date.
"ENVIRONMENTAL LAWS" means any applicable past, present or
future federal, state, territorial, provincial, regional, foreign or local law,
common law doctrine, rule, order, decree, judgment, injunction, license, permit
or regulation relating to environmental matters, including those pertaining to
land use, air, soil, substrata surface water, groundwater (including the
protection, cleanup, removal, remediation or damage thereof), public or employee
health or safety or any other environmental matter, together with any other laws
(federal, state, territorial, provincial, regional, foreign or local) relating
to emissions, discharges, releases or threatened releases of any pollutant or
contaminant including, without limitation, medical, chemical, biological,
biohazardous, hazardous, toxic or radioactive waste, materials or substances,
into ambient air, land, surface water, groundwater, personal property or
structures, or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transportation, or handling of any pollutant
or contaminant, including, without limitation, the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. 9601 et seq.) ("CERCLA"),
the Hazardous Material Transportation Act (49 U.S.C. 1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. 6901 et seq.) ("RCRA"), the Federal
Water Pollution Control Act (33 U.S.C. 1251 et seq.), the Clean Air Act (42
U.S.C. 1251 et seq.), the Toxic Substances Control Act (15 U.S.C. 2601 et seq.),
and the Occupational Safety and Health Act (29 U.S.C. 651 et seq.), as such laws
have been, or are, amended, modified or supplemented from time to time and any
analogous future federal, or present or future state or local laws, statutes and
regulations promulgated thereunder.
"EQUITY CLOSING" shall have the meaning set forth in Section
2.17.
"EQUITY CLOSING DATE" shall have the meaning set forth in
Section 2.17.
"EQUITY DOCUMENTS" shall have the meaning set forth in the
Senior Credit Agreement as in existence on the Closing Date.
"EQUITY SALE" means the issuance and sale by Holdings on or
prior to the Closing Date to Carlyle Partners of Bridge Preferred Stock, which
sale shall provide not less than gross proceeds of $45 million to Holdings.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended and the rules and regulations promulgated thereunder.
"ERISA AFFILIATE" means a corporation that is or was a member
of a controlled group of corporations with Holdings within the meaning of
Section 4001(a) or (b) of ERISA or Section 414(b) of the Code, a trade or
business (including a sole proprietorship, partnership, trust, estate or
corporation) that is under common control with Holdings within the meaning of
Section 414(c) of the Code, or a trade or business which together with Holdings
is treated as a single employer under Section 414(m) or (o) of the Code.
"EVENT OF DEFAULT" shall have the meaning assigned to such
term in the Notes.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
6
<PAGE>
"FAIR MARKET VALUE" shall have the meaning assigned thereto in
the Senior Credit Agreement as in effect on the Closing Date.
"FISCAL QUARTER" means each of the three month periods ending
on March 31, June 30, September 30 and December 31.
"FISCAL YEAR" means the twelve month period ending on December
31.
"EXISTING CREDIT AGREEMENT" means that certain Revolving
Credit and Term Loan Agreement, dated December 23, 1999, as amended, between
Holdings and Fleet National Bank, as administrative agent.
"FINANCIAL STATEMENTS" means the Audited Financial Statements
and the Interim Financial Statements.
"GAAP" means generally accepted accounting principles in
effect within the United States, consistently applied.
"GOVERNMENTAL AUTHORITY" means the government of any nation,
state, city, locality or other political subdivision of any thereof, any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, regulation or compliance, and any
corporation or other entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing.
"GOVERNMENT CONTRACT" means any bid, quotation, proposal,
contract, agreement, work authorization, lease, commitment or sale or purchase
order of Holdings or any of its Subsidiaries with the United States Government,
or any state, local or foreign government.
"GUARANTOR" means each of Holdings and each Subsidiary
Guarantor.
"GUARANTY" means the Guaranty of each of Holdings and each
Subsidiary Guarantor substantially in the form attached hereto as Exhibit E-1
and E-2, respectfully.
"HAZARDOUS MATERIALS" means any chemical, pollutant,
contaminant, pesticide, petroleum or petroleum product or byproduct, radioactive
substance, solid waste (hazardous or extremely hazardous), special, dangerous or
toxic waste, hazardous or toxic substance, chemical or material regulated,
listed, referred to, limited or prohibited under any Environmental Law,
including without limitation: (i) friable or damaged asbestos,
asbestos-containing material, polychlorinated biphenyls (PCBs), solvents and
waste oil; (ii) any "hazardous substance" as defined under CERCLA or any
Environmental Law; (iii) any hazardous waste defined under RCRA or any
Environmental Law; and (iv) even if not prohibited, listed, limited or regulated
by an Environmental Law, all pollutants, contaminants or hazardous, dangerous or
toxic chemicals, materials, wastes, substances, including without limitation,
any industrial process or pollution control waste (whether or not hazardous
within the meaning of RCRA), which could pose a hazard to the environment, or
the health or safety of any person or impair the use or value of any portion of
the Property of the Borrower.
"INDEBTEDNESS" of any Person means without duplication (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person evidenced by notes, bonds, debentures or similar instruments or that bear
interest, (c) all reimbursement and all obligations with respect to
7
<PAGE>
letters of credit, bankers' acceptances, surety bonds and performance bonds,
whether or not matured, (d) all indebtedness for the deferred purchase price of
property or services, other than trade payables incurred in the ordinary course
of business that are not evidenced by a note or similar instrument and are not
more than 90 days overdue, (e) all indebtedness of such Person created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such property), (f) all Capital Lease Obligations of
such Person and the present value of future rental payments under all synthetic
leases, (g) all Guaranty Obligations of such Person, (h) (I) all obligations of
such Person to purchase, redeem, retire, defease or otherwise acquire for value,
prior to the date which is 6 months after the final maturity date of the Notes,
any Stock or Stock Equivalents of such Person, valued, in the case of redeemable
preferred stock, at the greater of its voluntary liquidation preference and its
involuntary liquidation preference plus accrued and unpaid dividends, and (II)
all Stock and Stock Equivalents of such Person if at such time it is Cash Pay
Stock, valued in the case of such preferred Stock or Stock Equivalent, at the
greater of its voluntary liquidation preference and its involuntary liquidation
preference plus, accrued and unpaid dividends (i) all payments that such Person
would have to make in the event of any early termination on the date
Indebtedness of such Person is being determined in respect of Hedging Contracts
of such Person, and (j) all Indebtedness of the type referred to above secured
by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in property
(including Accounts and general intangibles) owned by such Person, even though
such Person has not assumed or become liable for the payment of such
Indebtedness. All capitalized terms used in this definition but not defined in
this Agreement shall have the meaning assigned to them in the Senior Credit
Agreement in effect as of the Closing Date. The determination of the amount of
the Indebtedness at the relevant time of determination with respect to Holdings
and its Subsidiaries shall be made on a consolidated basis in accordance with
GAAP consistently applied.
"INTEREST COVERAGE RATIO" means, with respect to any Person
for any period, the ratio of EBITDA of such Person for such period to Interest
Expense of such Person for such period.
"INTEREST EXPENSE" shall have the meaning set forth in the
Senior Credit Agreement as in existence on the Closing Date.
"INTERIM FINANCIAL STATEMENTS" shall have the meaning assigned
to that term in Section 5.12(b).
"LEVERAGE RATIO" means, with respect to any Person for any
period, the ratio of (a) Financial Covenant Debt (as defined in the Senior
Credit Agreement as in effect on the Closing Date hereof) of such Person and its
Subsidiaries determined on a consolidated basis in accordance with GAAP as of
the last day of such period to (b) EBITDA for such Person for such period.
"LIEN" means any mortgage, deed of trust, pledge,
hypothecation, assignment, charge, deposit arrangement, encumbrance, lien
(statutory or other), security interest or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
intended to assure payment of any Indebtedness or the performance of any other
obligation, including any conditional sale or other title retention agreement,
the interest of a lessor under a Capital Lease and any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the UCC or comparable law of any jurisdiction
naming the owner of the asset to which such Lien relates as debtor.
8
<PAGE>
"MARGIN STOCK" shall have the meaning provided in Regulation
U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(x) the financial condition, business operations or prospects of Holdings and
its Subsidiaries taken as a whole, (y) the ability of Holdings and its
Subsidiaries to pay their obligations or perform their respective agreements
under the Note Transaction Documents or (z) the validity or enforceability of
this Agreement or any of the other Note Transaction Documents or any of the
material rights or remedies of any Purchaser hereunder or under any Note
Transaction Document.
"MATERIAL CONTRACTS" means the contracts and arrangements
required to be set forth on Schedule 5.28.
"MATERIAL SUBSIDIARY" means, with respect to any Person, at
the date of determination, any Subsidiary of such Person that, together with its
Subsidiaries, (i) for the most recent fiscal year, accounted for more than 10%
of the consolidated revenues of such Person or (ii) as of the end of the most
recent fiscal quarter, was the owner of more than 10% of the consolidated assets
of such Person.
"MEZZANINE EQUITY" means the WMF Equity, Whitney DF Equity,
Whitney LLC Equity, Blackstone Holdings Equity, Blackstone Partners Equity,
Carlyle Equity and Oak Hill Equity.
"MEZZANINE PREFERRED STOCK" means the Series C preferred stock
of Holdings having the terms and conditions set forth in the relevant
Certificate of Designation.
"MULTIEMPLOYER PLAN" means a multiemployer plan within the
meaning of Section 3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code.
"NOTE TRANSACTION" means the transactions contemplated by this
Agreement.
"NOTES" means collectively, the WMF Note, the Whitney DF Note,
the Whitney LLC Note, the Blackstone Partners Note, the Blackstone Holdings
Note, the Carlyle Note and the Oak Hill Note and any portions thereof assigned
or transferred.
"NOTE TRANSACTION DOCUMENTS" means, collectively, this
Agreement, the Notes, the Registration Rights Agreement, the Guarantys, the
Certificate of Incorporation and the By-laws.
"OAK HILL" shall have the meaning set forth in the first
clause hereof.
"OAK HILL EQUITY" shall have the meaning set forth in the
seventh Whereas clause hereof.
"OAK HILL NOTE" means those senior promissory notes referred
to in the seventh Whereas clause hereof, which notes shall be substantially in
the form attached hereto as Exhibit A.
"PERMANENT PREFERRED STOCK" means the Series D preferred stock
of Holdings having substantially the terms and conditions set forth in the
Certificate of Designation relating thereto.
9
<PAGE>
"PERMITS" means all licenses, permits, orders, consents,
approvals, registrations, authorizations, qualifications and filings required by
any federal, state, local or foreign laws or governmental or regulatory bodies
and all industry or other non-governmental self-regulatory organizations,
including, without limitation, the United States Federal Aviation Authority, or
any analogous foreign governmental agency.
"PERMITTED ACQUISITION" means the acquisition by Holdings or
any of its Subsidiaries of all or substantially all of the assets or Stock of
any Person or of any operating division thereof (the "TARGET"), or the merger of
the Target with or into Holdings or any Subsidiary of Holdings (with Holdings,
in the case of a merger with Holdings, being the surviving corporation) subject
to the satisfaction of each of the following conditions:
(a) the Purchasers shall receive at least 10 days' prior
written notice of such acquisition, which notice shall include, without
limitation, a reasonably detailed description of such acquisition;
(b) such acquisition shall only involve assets substantially
located in the United States and comprising a business, or those assets of a
business of the type engaged in by the Borrower and its Subsidiaries or
permitted pursuant to Section 9.13 hereof;
(c) such acquisition shall be consensual and shall have been
approved by the Target's board of directors;
(d) no additional Indebtedness or other liabilities shall be
incurred, assumed or otherwise be reflected on a consolidated balance sheet of
Holdings and Target after giving effect to such acquisition, except (i) loans
made under the Senior Credit Agreement, (ii) ordinary course trade payables,
accrued expenses and (iii) Indebtedness permitted under Section 9.06 hereof;
(e) the sum of all amounts payable in connection with such
acquisition and all other Permitted Acquisitions (including all transaction
costs and all Indebtedness, liabilities and Guaranty Obligations incurred or
assumed in connection therewith or otherwise reflected in a consolidated balance
sheet of Holdings and Target) shall not exceed $100,000,000;
(f) concurrently with delivery of the notice referred to in
(a) above, the Borrower shall have delivered to the Purchasers such other
financial information, financial analysis, documentation or other information
relating to such acquisition as the Purchasers shall reasonably request; and
(g) at the time of such acquisition and after giving effect
thereto, no Default or Event of Default shall have occurred and be continuing.
"PERSON" means any individual, firm, corporation, limited
liability company, partnership, trust, incorporated or unincorporated
association, joint venture, joint stock company, Governmental Authority or other
entity of any kind, and shall include any successor (by merger or otherwise) of
such entity.
"PLANS" shall have the meaning assigned to that term in
Section 5.23 of this Agreement.
"PREFERRED STOCK" means the shares of preferred stock, par
value $.01 per share, of Holdings.
10
<PAGE>
"PURCHASERS" shall have the meaning set forth in the first
paragraph of this Agreement.
"RCRA" has the meaning set forth in the definition of
"Environmental Laws."
"RR AGREEMENT" means the Distribution Services Agreement
between Rolls-Royce Corporation and the Borrower appointing Borrower the
exclusive worldwide distributor of all parts related to the Rolls Royce T56
engine substantially in the form attached hereto as Exhibit G.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement substantially in the form attached hereto as Exhibit H.
"REQUIREMENTS OF LAW" means as to Holdings, Borrower and their
Subsidiaries, any law (including Environmental Laws), rule, regulation, decree,
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable or binding upon Holdings, Borrower and their Subsidiaries,
or any of their property or assets or to which they or any of their property or
assets is subject or pertaining to any or all of the Transaction.
"RESTRICTED PAYMENT" shall have the meaning assigned thereto
in the Senior Credit Agreement as in effect on the Closing Date.
"SEC REPORTS" with respect to any Person means all forms,
reports, statements and other documents (including exhibits, annexes,
supplements and amendments to such documents) required to be filed by it, or
sent or made available by it to its security holders, under the Exchange Act,
the Securities Act, any national securities exchange or quotation system or
comparable Governmental Authority since the date of such Person's initial public
offering subsequent to January 1, 1999.
"SECURITIES" means, collectively, the Notes and the Mezzanine
Equity.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
or any similar federal statute, and the rules and regulations thereunder as the
same shall be in effect at the time.
"SENIOR CREDIT AGREEMENT" means the Credit Agreement dated as
of the date hereof among the Borrower, Holdings, the lenders and issuers party
thereto from time to time, and Citicorp USA, Inc., as amended, amended and
restated, extended, supplemented, refinanced or otherwise modified from time to
time, including any agreement extending the maturity of, refinancing, replacing
or otherwise restructuring (including, without limitation, by increasing the
amount of available borrowings thereunder or adding any Subsidiaries of Holdings
as additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or documents or any successor or replacement
agreement or documents and whether by the same or any other agent, lender or
group of lenders.
"SENIOR CREDIT AGREEMENT DOCUMENTS" means the Senior Credit
Agreement and, after the execution and delivery thereof pursuant to the terms of
the Senior Credit Agreement, each note, each security document and guarantee
and, after the execution and delivery thereof, each additional note, guaranty or
security document executed pursuant to the Senior Credit Agreement.
"SHARES" shall have the meaning assigned to that term in
Section 8.05 hereof.
11
<PAGE>
"SOLVENT" means, with respect to any Person, that the value of
the assets of such Person (both at fair value and present fair saleable value)
is, on the date of determination, greater than the total amount of liabilities
(including contingent and unliquidated liabilities) of such Person as of such
date and that, as of such date, such Person is able to pay all liabilities of
such Person as such liabilities mature and does not have unreasonably small
capital. In computing the amount of contingent or unliquidated liabilities at
any time, such liabilities shall be computed at the amount that, in light of all
the facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual or matured liability.
"STOCKHOLDER APPROVAL" means the affirmative approval of the
stockholders of Holdings, in accordance with the rules of the New York Stock
Exchange, Inc., to the issuance of the Mezzanine Equity and the Permanent
Preferred Stock, all as contemplated pursuant to the Transaction.
"SUBSIDIARY" means, with respect to any Person, a corporation
or other entity of which more than 50% of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly, by such Person.
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
Holdings.
"SUBSIDIARY GUARANTOR" means each domestic Subsidiary of the
Borrower which executes a Guaranty concurrently herewith or which executes a
Subsidiary Guaranty after the Closing Date.
"T56 FINANCIAL INFORMATION" means the historical financial
information provided to Purchasers by Holdings and Borrower set forth as
Schedule 5.12(b) hereto relating to the Rolls-Royce T56 and 501D parts, modules,
and all related technical publications and all 501K parts that are common with
501D or T56 engines.
"TANGIBLE NET WORTH" shall have the meaning assigned thereto
in the Senior Credit Agreement as in effect on the Closing Date.
"TAX" means any federal, state, local or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Code Section
59A), customs duties, capital stock, franchise profits, withholding, social
security (or similar), unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added, alternative or
add-on-minimum, estimated, or other tax of any kind whatsoever, including any
interest, penalty, or addition thereto, whether disputed or not.
"TAX RETURN" means any return, declaration, report, claim for
refund, or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof.
"TOTAL ASSETS" of any Person means, at any date, the total
assets of such Person and its Subsidiaries at such date determined on a
consolidated basis in conformity with GAAP minus (a) any minority interest in
non-wholly-owned Subsidiaries that would be reflected on a consolidated balance
sheet of such person and its Subsidiaries at such date prepared in conformity
with GAAP and (b) any Securities (as defined in the Senior Credit Agreement as
of the Closing Date) issued by such Person held as treasury securities.
12
<PAGE>
"TOTAL LIABILITIES" of any Person means, at any date, all
obligations that, in conformity with GAAP, would be included in determining
total liabilities as shown on the liabilities side of a consolidated balance
sheet of such Person and its Subsidiaries at such date; provided, however, that,
regardless of whether the same would be so shown, "Total Liabilities" of any
Person shall include all Indebtedness of such Person or any of its Subsidiaries
at such date (other than intercompany Indebtedness) and shall include the
greater of the liquidation preference and the redemption price of any
outstanding Disqualified Stock of such Person at such date.
"TRANSACTION" means, collectively, (i) the incurrence of
Indebtedness hereunder on the Closing Date and the sale and issuance of the
Mezzanine Equity by Holdings on the Equity Closing Date, (ii) the consummation
of the transactions contemplated by the Senior Credit Agreement providing for a
facility of $200.0 million, of which not less than the Availability Amount will
be available for borrowing thereunder at the Closing Date, (iii) the Equity
Sale, (iv) the repayment of all amounts outstanding under the Existing Credit
Agreement, (v) the payment of no less than $70 million for the purchase of
inventory pursuant to and in accordance with the RR Agreement and no more than
$20 million for a licensing fee in connection therewith, and (vi) the payment of
fees and expenses owing in connection with the foregoing in an amount not
materially exceeding the amount set forth on the As Adjusted Balance Sheet.
"WMF EQUITY" shall have the meaning set forth in the first
Whereas clause hereof.
"WMF NOTE" means the senior promissory note referred to in the
first Whereas clause hereof, which note shall be substantially in the form
attached hereto as Exhibit A.
"WHITNEY DF EQUITY" shall have the meaning set forth in the
second Whereas clause hereof.
"WHITNEY DF NOTE" means the senior promissory note referred to
in the second Whereas clause hereof, which note is substantially in the form
attached hereto as Exhibit A.
"WHITNEY LLC EQUITY" shall have the meaning set forth in the
third Whereas clause hereof.
"WHITNEY LLC NOTE" means the senior promissory note referred
to in the third Whereas clause hereof, which note is substantially in the form
attached hereto as Exhibit A.
1.02 ACCOUNTING TERMS: FINANCIAL STATEMENTS. All accounting terms used
herein and not expressly defined in this Agreement shall have the respective
meanings given to them in conformance with GAAP. Financial statements and other
information furnished after the date hereof pursuant to the Agreement or the
other Note Transaction Documents shall be prepared in accordance with GAAP as in
effect at the time of such preparation, provided, however, that no "Accounting
Changes" (as defined below) shall be taken into account in determining
compliance with the financial covenants, standards or terms in this Agreement.
Holdings and the Borrower shall prepare footnotes to each Compliance Certificate
and the financial statements required to be delivered hereunder that show the
differences between the basis for calculating financial covenant compliance (the
calculation of financial covenant compliance shall not be based upon nor reflect
such Accounting Changes) and the financial statements delivered (which shall
reflect such Accounting Changes). "ACCOUNTING CHANGES" means: (a) changes in
accounting principles required by GAAP and implemented by Holdings and its
Subsidiaries; (b) changes in accounting principles
13
<PAGE>
recommended by Holdings' certified public accountants and implemented by
Holdings; and (c) changes resulting from (i) the application of purchase
accounting principles (A.P.B. 16 and/or 17 and EITF 88-16 and FASB 109) to the
purchase and sale of the Securities or the other transactions described in the
Note Transaction Documents, or (ii) any other adjustments that, in each case,
were applicable to, but not included in, the As Adjusted Balance Sheet. All such
adjustments resulting from expenditures made subsequent to the Closing Date
(including, but not limited to, capitalization of costs and expenses or payment
of pre-Closing Date liabilities) shall be treated as expenses in the period the
expenditures are made.
1.03 KNOWLEDGE OF THE BORROWER. All references to the knowledge of the
Borrower or Holdings or to facts known by the Borrower or Holdings shall mean
actual knowledge or notice of the Persons named on Exhibit F hereto.
ARTICLE 2
PURCHASE AND SALE OF THE SECURITIES
2.01 PURCHASE AND SALE OF THE WMF NOTE. Subject to the terms and
conditions herein set forth, the Borrower agrees that it will issue and sell to
WMF, and WMF agrees that it will acquire from the Borrower on the Closing Date,
the WMF Note substantially in the form attached hereto as Exhibit A,
appropriately completed in conformity herewith.
2.02 PURCHASE AND SALE OF THE WHITNEY DF NOTE. Subject to the terms and
conditions herein set forth, the Borrower agrees that it will issue and sell to
Whitney DF, and Whitney DF agrees that it will acquire from the Borrower on the
Closing Date, the Whitney DF Note substantially in the form attached hereto as
Exhibit A, appropriately completed in conformity herewith.
2.03 PURCHASE AND SALE OF THE WHITNEY LLC NOTE. Subject to the terms
and conditions herein set forth, the Borrower agrees that it will issue and sell
to Whitney LLC, and Whitney LLC agrees that it will acquire from the Borrower on
the Closing Date, the Whitney LLC Note substantially in the form attached hereto
as Exhibit A, appropriately completed in conformity herewith.
2.04 PURCHASE AND SALE OF THE BLACKSTONE PARTNERS NOTE. Subject to the
terms and conditions herein set forth, the Borrower agrees that it will issue
and sell to Blackstone Partners, and Blackstone Partners agrees that it will
acquire from the Borrower on the Closing Date, the Blackstone Partners Note
substantially in the form attached hereto as Exhibit A, appropriately completed
in conformity herewith.
2.05 PURCHASE AND SALE OF THE BLACKSTONE HOLDINGS NOTE. Subject to the
terms and conditions herein set forth, the Borrower agrees that it will issue
and sell to Blackstone Holdings, and Blackstone Holdings agrees that it will
acquire from the Borrower on the Closing Date, the Blackstone Holdings Note
substantially in the form attached hereto as Exhibit A, appropriately completed
in conformity herewith.
2.06 PURCHASE AND SALE OF THE CARLYLE NOTE. Subject to the terms and
conditions herein set forth, the Borrower agrees that it will issue and sell to
Carlyle, and Carlyle agrees that it will acquire
14
<PAGE>
from the Borrower on the Closing Date, the Carlyle Note substantially in the
form attached hereto as Exhibit A, appropriately completed in conformity
herewith.
2.07 PURCHASE AND SALE OF THE OAK HILL NOTE. Subject to the terms and
conditions herein set forth, the Borrower agrees that it will issue and sell to
Oak Hill, and Oak Hill agrees that it will acquire from the Borrower on the
Closing Date, the Oak Hill Note substantially in the form attached hereto as
Exhibit A, appropriately completed in conformity herewith.
2.08 PURCHASE AND SALE OF WMF EQUITY. Subject to the terms and
conditions herein set forth, Holdings agrees that it will issue and sell to WMF,
and WMF agrees that it will acquire from Holdings on the Equity Closing Date,
the WMF Equity.
2.09 PURCHASE AND SALE OF WHITNEY DF EQUITY. Subject to the terms and
conditions herein set forth, Holdings agrees that it will issue and sell to
Whitney DF, and Whitney DF agrees that it will acquire from Holdings on the
Equity Closing Date, the Whitney DF Equity.
2.10 PURCHASE AND SALE OF WHITNEY LLC EQUITY. Subject to the terms and
conditions herein set forth, Holdings agrees that it will issue and sell to
Whitney LLC, and Whitney LLC agrees that it will acquire from Holdings on the
Equity Closing Date, the Whitney LLC Equity.
2.11 PURCHASE AND SALE OF BLACKSTONE HOLDINGS EQUITY. Subject to the
terms and conditions herein set forth, Holdings agrees that it will issue and
sell to Blackstone Holdings, and Blackstone Holdings agrees that it will acquire
from Holdings on the Equity Closing Date, the Blackstone Holdings Equity.
2.12 PURCHASE AND SALE OF BLACKSTONE PARTNERS EQUITY. Subject to the
terms and conditions herein set forth, Holdings agrees that it will issue and
sell to Blackstone Partners, and Blackstone Partners agrees that it will acquire
from Holdings on the Equity Closing Date, the Blackstone Partners Equity.
2.13 PURCHASE AND SALE OF CARLYLE EQUITY. Subject to the terms and
conditions herein set forth, Holdings agrees that it will issue and sell to
Carlyle, and Carlyle agrees that it will acquire from Holdings on the Equity
Closing Date, the Carlyle Equity.
2.14 PURCHASE AND SALE OF OAK HILL EQUITY. Subject to the terms and
conditions herein set forth, Holdings agrees that it will issue and sell to Oak
Hill, and Oak Hill agrees that it will acquire from Holdings on the Equity
Closing Date, the Oak Hill Equity.
2.15 FEES AT CLOSING. Concurrently with the execution hereof, the
Borrower shall (a) pay to each Purchaser the placement fee set forth on Schedule
2.15 and (b) reimburse all of the Purchasers' reasonable out-of-pocket expenses
(including, without limitation, fees, charges and disbursements of counsel and
consultants) incurred in connection with (i) the negotiation and execution and
delivery of this Agreement and the Note Transaction Documents and the
Purchasers' due diligence investigation and (ii) the transactions contemplated
by this Agreement and the Note Transaction Documents, which payments shall be
made by wire transfer of immediately available funds to an account or accounts
designated by the Purchasers.
2.16 CLOSING. The purchase and issuance of the Notes shall take place
at the closing (the "CLOSING") to be held at the offices of Weil, Gotshal &
Manges, LLP, 767 Fifth Avenue, New York,
15
<PAGE>
New York 10153-0119, on the 21st of December, 2001 (the "CLOSING DATE"). At the
Closing, the Borrower shall deliver the Notes to the Purchasers against delivery
by the Purchasers to the Borrower of the purchase prices therefor and for the
Mezzanine Equity.
2.17 EQUITY CLOSING. The purchase and sale of the Mezzanine Equity
shall take place at a closing (the "EQUITY CLOSING") to be held on the
Conversion Date at such place and time as agreed between the parties hereto (the
"EQUITY CLOSING DATE"). The Equity Closing with respect to the issuance of the
Mezzanine Equity to any Purchaser will not occur unless and until the occurrence
of the Conversion Date with respect to the Note issued to such Purchaser. At the
Equity Closing with respect to any Purchaser, Holdings shall deliver stock
certificates representing the Mezzanine Equity to such Purchaser in the amount
as set forth on Schedule 2.15 with respect to such Purchaser (with appropriate
legends thereon).
ARTICLE 3
CONDITIONS TO THE RESPECTIVE
OBLIGATIONS OF THE PURCHASERS
TO PURCHASE THE SECURITIES
The obligation of each Purchaser to purchase its respective
Notes and Mezzanine Equity and to pay the purchase prices therefor at the
Closing and to perform any obligations hereunder shall be subject to the
satisfaction as determined by, or waived by, such Purchaser of the following
conditions on or before the Closing Date; provided, however, that any waiver of
a condition shall not be deemed a waiver of any breach of any representation,
warranty, agreement, term or covenant or of any misrepresentation by the
Borrower or Holdings. None of the Purchasers shall be obligated to purchase any
Note unless the purchase and sale of all the Notes occurs simultaneously.
3.01 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Borrower and Holdings contained in Article 5 hereof shall be true and
correct at and as of the date hereof and the Closing Date as if made at and as
of such date, and the Purchasers shall have received at the Closing a
certificate to the foregoing effect, dated the Closing Date, and executed by the
Chief Executive Officer, President or a Vice President of the Borrower.
3.02 COMPLIANCE WITH THIS AGREEMENT. The Borrower and Holdings shall
have performed and complied in all material respects with all of their
agreements and conditions set forth or contemplated herein that are required to
be performed or complied with by them on or before the Closing Date, and the
Purchasers shall have received at the Closing a certificate to the foregoing
effect, dated the Closing Date, and executed by the Chief Executive Officer,
President or a Vice President of the Borrower.
3.03 SECRETARY'S CERTIFICATES FOR BORROWER. The Purchasers shall have
received certificates from the Borrower, dated the Closing Date and signed by
the Secretary or an Assistant Secretary of the Borrower, certifying (x) that the
attached copies of the Certificate of Incorporation and By-laws of the Borrower,
and resolutions of the Board of Directors of the Borrower approving the Note
Transaction Documents to which it is a party and the Note Transaction are all
true, complete and correct and remain unamended and in full force and effect,
and (y) the incumbency and specimen signature of each officer of the Borrower
executing any Note Transaction Document to which it is a
16
<PAGE>
party or any other document delivered in connection herewith and therewith on
behalf of the Borrower.
3.04 SECRETARY'S CERTIFICATES FOR HOLDINGS. The Purchasers shall have
received certificates from Holdings, dated the Closing Date and signed by the
Secretary or an Assistant Secretary of Holdings, certifying (x) that the
attached copies of the Certificate of Incorporation and By-laws of Holdings, and
resolutions of the Board of Directors of Holdings approving the Note Transaction
Documents to which it is a party and the transactions contemplated hereby and
thereby are all true, complete and correct and remain unamended and in full
force and effect, and (y) the incumbency and specimen signature of each officer
of Holdings executing any Note Transaction Document to which it is a party or
any other document delivered in connection herewith and therewith on behalf of
Holdings.
3.05 DOCUMENTS. The Purchasers shall have received true, complete and
correct copies of such agreements, schedules, exhibits, certificates, documents,
financial information and filings as they may reasonably request in connection
with or relating to the Note Transaction, all in form and substance reasonably
satisfactory to the Purchasers.
3.06 PURCHASE OF SECURITIES PERMITTED BY APPLICABLE LAWS. Except as set
forth on Schedule 3.06, the acquisition of and payment for the Securities to be
acquired by the Purchasers hereunder and the consummation of the Note
Transaction (a) shall not be prohibited by any Requirement of Law, (b) shall not
subject the Purchasers to any onerous condition under or pursuant to any
Requirement of Law, and (c) shall be permitted by all Requirements of Law to
which any Purchaser or the Note Transaction or the Note Transaction Documents
are subject; and the Purchasers shall have received such certificates or other
evidence as they may reasonably request to establish compliance with this
condition.
3.07 OPINION OF COUNSEL. The Purchasers shall have received an opinion
of Haynes and Boone LLP, outside counsel to Holdings and its Subsidiaries, dated
as of the Closing Date, relating to the Note Transaction and such other matters,
in form and substance reasonably acceptable to the Purchasers.
3.08 APPROVAL OF COUNSEL TO THE PURCHASERS. All actions and proceedings
hereunder and all agreements, schedules, exhibits, certificates, financial
information, filings and other documents required to be delivered by Holdings
and each of its Subsidiaries hereunder or in connection with the consummation of
the Note Transaction shall be in form and substance reasonably acceptable to
Chadbourne & Parke LLP, counsel to the Purchasers, in its reasonable judgment
(including, without limitation, the opinion of counsel referred to in Section
3.07 hereof).
3.09 CONSENTS AND APPROVALS. Except as set forth on Schedule 3.09, all
consents, exemptions, authorizations, or other actions by, or notices to, or
filings with, Governmental Authorities and other Persons in respect of all
Requirements of Law and with respect to those Contractual Obligations of
Holdings and each of its Subsidiaries necessary or required in connection with
the execution, delivery or performance (including, without limitation, the
payment of interest on the Notes and the issuance of the Mezzanine Equity), by
Holdings and each of its Subsidiaries, or enforcement against Holdings and each
of its Subsidiaries, of the Note Transaction Documents to which it is a party
shall have been obtained and be in full force and effect, and the Purchasers
shall have been furnished with appropriate evidence thereof, and all waiting
periods shall have lapsed without extension or the imposition of any conditions
or restrictions.
17
<PAGE>
3.10 REGISTRATION RIGHTS AGREEMENT. Holdings shall have duly executed
and delivered to the Purchaser the Registration Rights Agreement.
3.11 NO JUDGMENT OR ORDER. There shall not be on the Closing Date any
judgment or order of a court of competent jurisdiction or any ruling of any
Governmental Authority or any condition imposed under any Requirement of Law
which, in the judgment of the Purchasers, would prohibit the purchase of the
Securities hereunder or subject the Purchasers to any onerous condition under or
pursuant to any Requirement of Law if the Securities were to be purchased
hereunder.
3.12 AS ADJUSTED BALANCE SHEET. The Purchasers shall have received an
As Adjusted consolidated balance sheet of Holdings and its Subsidiaries, which
shall be certified by the principal accounting officer and principal finance
officer of Holdings, to the effect that it fairly presents the consolidated
preliminary balance sheet of Holdings and its Subsidiaries as of November 30,
2001 and as adjusted to reflect the consummation of the Transaction, including
all material fees and expenses in connection therewith.
3.13 GOOD STANDING CERTIFICATES. The Purchasers shall have received as
of the Closing Date, good standing certificates for Holdings and each of its
domestic Subsidiaries for each of their respective jurisdictions of
incorporation and all other jurisdictions where they do business.
3.14 NO LITIGATION. No action, suit or proceeding before any court or
any Governmental Authority shall have been commenced or threatened, no
investigation by any Governmental Authority shall have been commenced or
threatened and no action, suit or proceeding by any Governmental Authority shall
have been commenced or threatened against any Purchaser, Holdings or any
Subsidiary of Holdings (i) seeking to restrain, prevent or change the
Transaction or questioning the validity or legality of any of part of the
Transaction, or (ii) which would, if resolved adversely to such Purchaser,
Holdings or Subsidiary, have, individually or in the aggregate, a Material
Adverse Effect.
3.15 FEES, ETC. On the Closing Date, the Borrower shall have paid to
the Purchasers all costs, fees and expenses (including, without limitation,
reasonable legal fees and expenses) payable to the Purchasers to the extent then
due and invoiced.
3.16 FINANCINGS, ETC. (a) On or prior to the Closing Date, (x) Holdings
shall have received gross cash proceeds of at least $45,000,000 in consideration
for the issuance of Bridge Preferred Stock having an aggregate liquidation
preference equal to such gross proceeds and (y) Holdings shall have utilized the
full amount of such cash contribution to make payments owing in connection with
the Transaction.
(b) On or prior to the Closing Date, (i) the Borrower shall
have consummated the transactions contemplated by the Senior Credit Agreement
providing for a revolving credit facility of $200 million, and there shall be
not less than $32 million of: (x) undrawn availability under the BorrOwing Base
defined in the Senior Credit Agreement plus (y) available cash (the
"AVAILABILITY AMOUNT") and (ii) the Borrower shall have utilized an amount not
in excess of $17 million of net cash proceeds from borrowings under the Senior
Credit Agreement to pay fees and expenses owing in connection with the
Transaction.
(c) The Equity Sale and the issuance of Indebtedness under the
Senior Credit Agreement shall have been consummated, in each case in all
material respects in accordance with the
18
<PAGE>
terms and conditions of the applicable documentation therefor substantially in
the form provided to Purchaser as of the date hereof and all Requirements of
Law.
3.17 GUARANTY. Holdings and each Subsidiary Guarantor existing on the
Closing Date shall have guaranteed the obligations of Holdings and its
Subsidiaries under the Note Transaction Documents and duly authorized, executed
and delivered a Guaranty.
3.18 ADVERSE CHANGE, ETC.
(a) On the Closing Date and except as set forth on Schedule
5.15 hereof, there shall not have occurred or been threatened since September
30, 2001 any change (or a series of changes) that the Purchasers shall
determine, has resulted, or could reasonably be expected to result, in a
Material Adverse Effect.
(b) On or prior to the Closing Date, all necessary material
governmental (domestic and foreign) and material third party approvals and/or
consents in connection with the Transaction shall have been obtained and remain
in effect, and all applicable waiting periods shall have expired without any
action being taken by any competent authority which would cause a Material
Adverse Effect.
3.19 SOLVENCY CERTIFICATE; INSURANCE. On or before the Closing Date,
the Borrower shall cause to be delivered to the Purchasers (i) a solvency
certificate from the principal accounting officer and principal finance officer
of Holdings, which shall be addressed to the Purchasers and dated the Closing
Date, setting forth the conclusion that, on a going concern basis and after
giving effect to the Transaction and the incurrence of all the financings
contemplated thereby, and the Equity Sale and the right of contribution under
the Subsidiary Guarantees, Borrower and its Subsidiaries taken as a whole are
not insolvent and will not be rendered insolvent by the indebtedness incurred in
connection therewith, and will not be left with unreasonably small capital with
which to engage in its business and will not have incurred debts beyond its
ability to pay such debts as they mature, and (ii) copies of certificates of
insurance complying with the requirements of Section 8.08 for the business and
properties of Holdings and its Subsidiaries, in scope, form and substance
reasonably satisfactory to the Purchasers, and stating that such insurance shall
not be cancelled or revised without 30 days prior written notice by the insurer
to the Purchasers.
3.20 CONSENTS PRIOR TO OR CONTEMPORANEOUS WITH THE CLOSING DATE.
Holdings shall have amended or obtained the respective consents or waivers under
the various agreements and plans to the extent specified on Schedule 5.02
hereof.
ARTICLE 4
CONDITIONS TO THE OBLIGATIONS
OF HOLDINGS AND THE BORROWER TO ISSUE AND SELL THE SECURITIES
(A) The obligations of Borrower to issue and sell the Notes
and to perform its other obligations hereunder relating thereto shall be subject
to the satisfaction as determined by, or waived by, the Borrower of the
following conditions on or before the Closing Date:
19
<PAGE>
4.01 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of the Purchasers contained in Article 6 hereof shall be true and correct at and
as of the date hereof and the Closing Date as if made at and as of such date.
4.02 COMPLIANCE WITH THIS AGREEMENT. The Purchasers shall have
performed and complied in all material respects with all of their respective
agreements and conditions set forth or contemplated herein that are required to
be performed or complied with by the Purchasers on or before the Closing Date.
4.03 CLOSING OF TRANSACTIONS AND ROLLS ROYCE DISTRIBUTION SERVICES
AGREEMENT. At the Closing, Holdings, Borrower and Subsidiaries, as applicable,
will (i) enter (or have entered) into the RR Agreement; (ii) consummate the
transactions contemplated by the Senior Credit Agreement; and (iii) consummate
the Equity Sale. Prior to Closing, Holdings and Borrower hereby covenant and
agree to use their commercially reasonable best efforts to consummate the
foregoing.
4.04 SALE OF NOTES PERMITTED BY APPLICABLE LAWS. The acquisition of and
payment for the Notes to be acquired by each Purchaser hereunder and the
consummation of the transactions contemplated hereby and by the Note Transaction
Documents (a) shall not be prohibited by any Requirement of Law, (b) shall not
subject Holdings or Borrower to any onerous condition under or pursuant to any
Requirement of Law, and (c) shall be permitted by all Requirements of Law to
which Holdings, Borrower or the transactions contemplated by or referred to
herein or in the Note Transaction Documents are subject.
4.05 NO LITIGATION. No action, suit or proceeding before any court or
any Governmental Authority shall have been commenced or threatened, no
investigation by any Governmental Authority shall have been commenced and no
action, suit or proceeding by any Government Authority shall have been
threatened against the Purchasers, Holdings, the Borrower, or any Subsidiary (i)
seeking to restrain, prevent or change the Note Transaction or questioning the
validity or legality of any of such Note Transaction, or (ii) which would, if
resolved adversely to the Purchasers, Holdings, the Borrower or any Subsidiary,
severally or in the aggregate, have individually or in the aggregate a Material
Adverse Effect.
4.06 NO MATERIAL JUDGMENT OR ORDER. There shall not be on the Closing
Date any judgment or order of a court of competent jurisdiction or any ruling of
any Governmental Authority or any condition imposed under any Requirement of Law
which, in the judgment of the Borrower, would prohibit the sale of the
Securities hereunder or subject Holdings, the Borrower or any Subsidiary to any
penalty or other onerous condition under or pursuant to any Requirement of Law
if the Securities were to be sold hereunder.
(B) The obligations of Holdings to issue and sell the
Mezzanine Equity shall be subject to the receipt of the Stockholder Approval and
verification that Purchasers' representations set forth in Section 6.04 hereof
are true and correct on the Closing Date as they relate to the sale of the
Mezzanine Equity.
20
<PAGE>
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF HOLDINGS AND THE BORROWER
Holdings and the Borrower, jointly and severally, hereby
represent and warrant to the Purchasers as follows:
5.01 CORPORATE EXISTENCE AND POWER. Each of Holdings, the Borrower and
their respective Subsidiaries: (a) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation; (b) has all requisite corporate power and authority to own and
operate its property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged; (c) is, duly qualified as a
foreign entity, licensed and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification, except to the extent that the
failure to so qualify would not have a Material Adverse Effect on the Condition
of the Borrower; and (d) has the corporate power and authority to execute,
deliver and perform its obligations under each Note Transaction Document to
which it is or will be a party and, with respect to Borrower, to borrow
hereunder. Schedule 5.01 contains a true, complete and correct list of Holdings
and each of its Subsidiaries, their respective jurisdictions of incorporation or
organization. Holdings and each of its Subsidiaries are qualified to do business
in each jurisdiction where its ownership, lease or operation of property or the
conduct of its business would require it to be qualified to do business as a
foreign entity, except when the failure to be so qualified would not have,
individually or in the aggregate, a Material Adverse Effect.
5.02 CORPORATE AUTHORIZATION; NO CONTRAVENTION. The execution, delivery
and performance by each of Holdings, the Borrower and their respective
Subsidiaries of the Transaction Documents to which it is or will be a party and
the consummation of the Note Transaction including, without limitation, the
issuance of the Securities: (a) has been duly authorized by all necessary
corporate, and if required, stockholder action; (b) do not and will not
contravene the terms of the Certificate of Incorporation or By-Laws of Holdings
or any Subsidiary of Holdings, or any amendment thereof or any Requirement of
Law applicable to such Person or such Person's assets, business or properties
which would, with respect to any such Requirement of Law, have, individually or
in the aggregate, a Material Adverse Effect; (c) except as set forth on Schedule
5.02, do not and will not (i) conflict with, contravene, result in any violation
or breach of or default under (with or without the giving of notice or the lapse
of time or both), (ii) create in any other Person a right or claim of
termination or amendment, or (iii) require modification, acceleration or
cancellation of any Contractual Obligation of Holdings or any of its
Subsidiaries, the existence of which in the case of (i), (ii) or (iii) would
have, individually or in the aggregate, a Material Adverse Effect; and (d)
except as set forth in Schedule 5.02, do not and will not result in the creation
of any Lien (or obligation to create a Lien) against any property, asset or
business of Holdings or any of its Subsidiaries, which would result in,
individually or in the aggregate, a Material Adverse Effect.
5.03 GOVERNMENTAL AUTHORIZATION; THIRD PARTY CONSENTS. Except as set
forth in Schedule 5.03, no approval, consent, compliance, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person (including the New York Stock
Exchange or the stockholders of Holdings) in respect of any Requirement of Law
or Contractual Obligation, and no lapse of a waiting period under a Requirement
of Law or Contractual Obligation, is necessary or required in connection with
the execution, delivery or performance by Holdings or any of its Subsidiaries of
the Note Transaction Documents to which they are a party
21
<PAGE>
(including, without limitation, the payment of interest on the Notes and the
issuance of the Mezzanine Equity) or for the consummation by Holdings or its
Subsidiaries of the Note Transaction.
5.04 BINDING EFFECT. This Agreement has been, and each of the Note
Transaction Documents to which Holdings or its Subsidiaries will be a party to
will be, duly executed and delivered by such Person, and this Agreement
constitutes, and such Note Transaction Documents will constitute, the legal,
valid and binding obligation of each such Person enforceable against it in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity
relating to enforceability.
5.05 NO LEGAL BAR. Neither the execution, delivery and performance of
the Note Transaction Documents to which they are a party nor the issuance of or
performance of the terms of the Securities will violate in any Requirement of
Law, except where such violation would not have, individually or in the
aggregate, a Material Adverse Effect. Neither Holdings nor any of its
Subsidiaries has previously entered into any agreement which is currently in
effect or to which Holdings or any of its Subsidiaries is currently bound,
granting any rights to any Person which are inconsistent with the rights to be
granted by Holdings and its Subsidiaries in the Note Transaction Documents.
5.06 LITIGATION. Except as set forth on Schedule 5.06 or in the SEC
Filings, there are no legal actions, suits, proceedings, claims or disputes
pending or, to the knowledge of Holdings or the Borrower, threatened, at law, in
equity, in arbitration or before any Governmental Authority against or affecting
Holdings or any of its Subsidiaries except for such actions, suits, proceedings,
claims or disputes as would not, individually or in the aggregate, have a
Material Adverse Effect. No injunction, writ, temporary restraining order,
decree or any order of any nature has been issued by any court or other
Governmental Authority purporting to enjoin or restrain the execution, delivery
or performance of the Note Transaction Documents.
5.07 COMPLIANCE WITH LAWS. Except as set forth on Schedule 5.07, (i)
Holdings and its Subsidiaries are, and at all times since January 1, 2000 have
been, in material compliance with all Requirements of Law except where,
individually or in the aggregate, non-compliance would not result in a Material
Adverse Effect; (ii) each of Holdings and its Subsidiaries has obtained and
holds all material Permits necessary for the lawful conduct of its businesses or
the lawful ownership, use and operation of its assets; (iii) neither Holdings
nor any of its Subsidiaries has received any written notice of any material
violation of any Requirements of Law which has not been dismissed or otherwise
disposed of, or that Holdings or any Subsidiary has not so complied with; (iv)
neither Holdings nor any of its Subsidiaries is charged or, to the knowledge of
Holdings or Borrower threatened with, or, to the knowledge of Holdings or
Borrower, under investigation with respect to, any material violation of any
Requirements of Law relating to any aspect of the business of Holdings or and
Subsidiary; and (v) neither Holdings nor any of its Subsidiaries has, since
January 1, 2000, conducted any material internal investigation concerning any
actual or alleged material violation of any Requirement of Law on the part of
Holdings, any of its Subsidiaries or any of their respective officers or
directors.
5.08 NO DEFAULT OR BREACH. No event has occurred and is continuing or
would result from the incurring of obligations by Holdings and its Subsidiaries
under the Note Transaction Documents which constitutes or, with the giving of
notice or lapse of time or both, would constitute an Event of Default. Neither
Holdings nor any of its Subsidiaries is in default under or with respect to any
22
<PAGE>
Contractual Obligation which default, individually or in the aggregate, would
result in a Material Adverse Effect.
5.09 TITLE TO PROPERTIES.
(a) Neither Holdings nor any of its Subsidiaries owns any real
property. Holdings and its Subsidiaries have good title to all material assets
reflected on the As Adjusted Balance Sheet or used in connection with their
respective businesses, in each case, free and clear of all Liens, except
Customary Permitted Liens and for those Liens that would not have, individually
or in the aggregate, a Material Adverse Effect.
(b) Schedule 5.09 contains a list of all material real
property leases reflected on the As Adjusted Balance Sheet or used in connection
with the respective businesses of Holdings and each of its Subsidiaries.
Holdings and/or its Subsidiaries hold all of the right, title and interest of
the tenant under the leases reflected on the As Adjusted Balance Sheet or used
in connection with their respective businesses free and clear of all Liens,
except as provided on Schedule 5.09(b) and except where the failure to hold all
right title and interest of the tenant under the lease would not have
individually or in the aggregate Material Adverse Effect.
5.10 USE OF REAL PROPERTY. Except as set forth on Schedule 5.10, the
owned and leased real properties reflected on the As Adjusted Balance Sheet or
used in connection with the respective businesses of Holdings and its
Subsidiaries, are used and operated in compliance and conformity with all
Contractual Obligations and Requirements of Law, except to the extent that the
failure so to comply would not, individually or in the aggregate, have a
Material Adverse Effect; neither Holdings nor any of its Subsidiaries has
received notice of violation of any applicable zoning or building regulation,
ordinance or other law, order, regulation or other Requirements of Law relating
to the operations of either Holdings or any of its Subsidiaries which would
have, individually or in the aggregate, a Material Adverse Effect; and there is
no such violation that would have a Material Adverse Effect. Except as set forth
on Schedule 5.10, all structures, improvements and other buildings that are
owned or covered by leases reflected on the As Adjusted Balance Sheet or used in
connection with the business of Holdings and its Subsidiaries, comply in all
respects with all applicable Requirements of Law or Permits and have a valid and
subsisting certificate of occupancy for their present use, except to the extent
the failure to so comply or have such certificate of occupancy would not have,
individually or in the aggregate, a Material Adverse Effect. Neither Holdings
nor any Subsidiary thereof has received any written notice from any Governmental
Authority which is still outstanding of any failure to obtain any material
Permit, with respect to such real property, or any intended revocation,
modification or cancellation of same, and no Requirements of Law presently in
effect or condition precludes or restricts continuation of the present use of
such properties, except as would not have, individually or in the aggregate, a
Material Adverse Effect. Each lease relating to leased real property reflected
on the As Adjusted Balance Sheet or used in connection with the business of
Holdings or any of its Subsidiaries is in full force and effect and each such
Person enjoys peaceful and undisturbed possession thereunder, except as would
not have, individually or in the aggregate, a Material Adverse Effect. There is
no material default on the part of Holdings or any of its Subsidiaries or event
or condition which (with notice or lapse of time, or both) would constitute a
material default on the part of Holdings or any of its Subsidiaries under any
such lease. There are no material service contracts, maintenance contracts,
union contracts, concession agreements, licenses, agency agreements or any other
material Contractual Obligations affecting the real property or the leased
property reflected on the As Adjusted Balance Sheet or used in connection with
the business of Holdings and its Subsidiaries, or the operation thereof, other
than
23
<PAGE>
those listed on Schedule 5.10. There are no pending or, to the knowledge of
Holdings or Borrower, threatened condemnation or eminent domain proceedings that
would affect any part of the real property or the leased property reflected on
the As Adjusted Balance Sheet or used in connection with the business of
Holdings and its Subsidiaries, except as would not have, individually or in the
aggregate, a Material Adverse Effect. There are no actions, suits or proceedings
pending or, to the knowledge of Holdings or Borrowers, threatened against the
real property or the leased property on the As Adjusted Balance Sheet or used in
connection with the business of Holdings and its Subsidiaries, at law or in
equity, before any federal, state, municipal or governmental department,
commission, board, bureau, agency or instrumentality which would in any way
affect title to such real property or the leased property, except as would not
have, individually or in the aggregate, a Material Adverse Effect.
5.11 TAXES.
(a) All federal, state, local and foreign Tax Returns required
to be filed by or on behalf of Holdings and its Subsidiaries (or, to the
knowledge of Holdings and Borrower, any predecessor corporation of any of them),
or any consolidated, combined, affiliated entity or group of which Holdings or
any Subsidiary is (or, to the knowledge of Holdings and Borrower, has ever been)
a member have been timely filed with the appropriate tax authorities. All such
Tax Returns were correct and complete in all material respects. Except as set
forth in Section 5.11(g), all Taxes owed by Holdings and any of its Subsidiaries
(whether or not shown on any Tax Return) have been paid. No written claim has
ever been made by a Governmental Authority in a jurisdiction where Holdings or
any of its Subsidiaries does not file Tax Returns that Holdings or any of its
Subsidiaries is or may be subject to taxation by that jurisdiction, which claim
remains unresolved. There are no Liens on any of the assets of Holdings or any
of its Subsidiaries that arose in connection with any failure (or alleged
failure) to pay any Tax.
(b) Each of Holdings and its Subsidiaries has withheld all
material Taxes required to have been withheld in connection with amounts paid or
owing to any employee, independent contractors, customer, creditor, stockholder,
or other third party and has timely paid all such withheld amounts to the
appropriate taxing authorities.
(c) None of Holdings or any of its Subsidiaries expects any
Governmental Authority to assess any additional material Taxes for any period
for which Tax Returns have been filed. Except as set forth in Section 5.11(g),
all Taxes due with respect to any completed and settled audit, examination or
deficiency action with any taxing authorities for which Holdings or any of its
Subsidiaries is or might otherwise be liable have been paid in full. There is no
dispute or claim concerning any Tax liability of Holdings or any of its
Subsidiaries either (i) claimed or raised by any Governmental Authority in
writing or (ii) as to which Holdings or the Borrower has knowledge based upon
personal contact with any agent of such authority. To the knowledge of Holdings
and Borrower, no issue has arisen in any examination of Holdings or any of its
Subsidiaries by any taxing authority that if raised with respect to the same or
substantially similar facts in any other tax period not so examined would result
in a material deficiency for such other period, if upheld. Schedule 5.11(c)
lists all federal, state, local, and foreign income Tax Returns filed with
respect to any of Holdings and its Subsidiaries for taxable periods ended on or
after January 1, 1997, that have been audited, and indicates those Tax Returns
that currently are the subject of an audit. Holdings has made available to the
Purchasers correct and complete copies of all federal income Tax Returns,
examination reports and statements of deficiencies assessed against or agreed to
by any of the Borrower and its Subsidiaries for all taxable period beginning on
or after January 1, 1998.
24
<PAGE>
(d) Neither Holdings nor any of its Subsidiaries is currently
subject to any waiver of any statute of limitations in respect of Taxes or
agreement to any extension of time with respect to a Tax assessment or
deficiency.
(e) Neither Holdings nor any of its Subsidiaries has filed a
consent under Code Section 341(f) concerning collapsible corporations. Neither
the Borrower nor any of its Subsidiaries has made any payments, or to their
respective knowledge, is obligated to make any payments that will not be
deductible under Code Section 280G or Section 162(m). Neither Holdings nor any
of its Subsidiaries has been a United States real property holding corporation
within the meaning of Code Section 897(c)(2) during the applicable period
specified in Code Section 897(c)(1)(A)(ii). Each of Holdings and its
Subsidiaries has disclosed on its federal income Tax Returns all positions taken
therein that could give rise to a substantial understatement of federal income
Tax within the meaning of Code Section 6621 where such understatement would
result in a Material Adverse Effect. Except as disclosed in Schedule 5.11(e),
neither Holdings nor any of its Subsidiaries is a party to any Tax allocation or
sharing agreement.
(f) Schedule 5.11(f) sets forth the following information with
respect to each of Holdings and its Subsidiaries (or, in the case of clause (ii)
below, with respect to each of the Subsidiaries) as reported for federal income
tax purposes as of December 31, 2000: (i) the amount of any net operating loss,
net capital loss, unused investment or other credit, unused foreign tax credit,
or excess charitable contribution allocable to Holdings or Subsidiary; and (ii)
the amount of any deferred gain or loss allocable to Holdings or any Subsidiary
arising out of any deferred intercompany transaction.
(g) The unpaid Taxes of Holdings and its Subsidiaries (i) did
not, as of the month ended September 2001, exceed the reserve for Tax liability
(rather than any reserve for deferred Taxes established to reflect timing
differences between book and Tax income) set forth on the face of the balance
sheet for such month end (rather than in any notes thereto) and (ii) did not
exceed that reserve as adjusted for the passage of time through the Closing Date
in accordance with the past custom and practice of Holdings and its Subsidiaries
in filing their Tax Returns.
(h) Except as disclosed in Schedule 5.11(h), neither Holdings
nor any of its Subsidiaries has any liability for the Taxes of any person or
entity other than Holdings and its Subsidiaries (i) under Reg. Section 1.1502-6
(or any similar provision of state, local or foreign law), (ii) as a transferee
or successor, (iii) by contract, or (iv) otherwise.
(i) To the knowledge of Holdings and Borrower, for purposes of
Code Section 382, immediately prior to the Closing Date the cumulative owner
shifts involving 5-percent shareholders and equity structure shifts with respect
to Holdings that would be taken into account in measuring whether an ownership
change has occurred as of the Closing Date is not greater than 10%.
5.12 SEC REPORTS; FINANCIAL CONDITION.
(a) Holdings has filed all SEC Reports and has made available
to the Purchasers each SEC Report. The SEC Reports of Holdings, including,
without limitation, any financial statements or schedules included or
incorporated therein by reference, (i) comply in all material respects with the
requirements of the Exchange Act or the Securities Act or both, as the case may
be, applicable to those SEC Reports and (ii) did not at the time they were filed
in the case of Exchange Act filings, or became effective in the case of
Securities Act filings, contain any untrue statement of a material fact or omit
to state a material fact required to be stated or necessary in order to make the
25
<PAGE>
statements made in those SEC Reports, in light of the circumstances under which
they were made, and at the time they were made, not misleading. No Subsidiary of
Holdings is subject to the periodic reporting requirements of the Exchange Act
or is otherwise required to file any documents with the Commission or any
national securities exchange or quotation service or comparable Governmental
Authority.
(b) Holdings has furnished the Purchasers with true and
complete copies of (i) the audited consolidated balance sheets of Holdings and
its Subsidiaries as of December 31, 2000 and December 31, 1999, and the related
consolidated statements of income, stockholders' equity and cash flows, together
with the notes thereto, of Holdings and its Subsidiaries for each of the three
years ended December 31, 2000, together with the report of Pricewaterhouse
Coopers LLP thereon (the "AUDITED FINANCIAL STATEMENTS"), and (ii) the unaudited
consolidated balance sheet and the preliminary consolidating balance sheet of
Holdings and its Subsidiaries, each as of September 30, 2001, and the related
unaudited consolidated and preliminary consolidating statements of income,
together with the notes thereto, of Holdings and its Subsidiaries for the nine
months ended September 30, 2001 (the "INTERIM FINANCIAL STATEMENTS"). The
Audited Financial Statements and the Interim Financial Statements, which were
provided to the Purchasers, fairly present, in all material respects, the
financial position of Holdings and each of its Subsidiaries as of the respective
dates thereof, and the results of operations and cash flows of Holdings and each
of its Subsidiaries as of the respective dates or for the respective periods set
forth therein, all in conformity with GAAP, consistently applied during the
periods involved, except as otherwise set forth in the notes thereto and
subject, in the case of the Interim Financial Statements, to normal year-end and
quarterly audit and reserve adjustments, as the case may be. As of the dates of
the Financial Statements, neither Holdings nor its Subsidiaries had any
obligation, indebtedness or liability (whether accrued, absolute, contingent or
otherwise, known or unknown, and whether due or to become due), which was not
reflected or reserved against in the balance sheets or the notes thereto which
are part of the Audited Financial Statements, to the extent required to be
reflected or reserved against in accordance with GAAP. To the knowledge of
Borrower and Holdings, the T56 Financial Information is true, complete and
correct in all material respects.
(c) The As Adjusted Balance Sheet delivered to the Purchasers
fairly presents in all material respects the assets and liabilities of Holdings
and its Subsidiaries taken as a whole on a consolidated basis as of November 30,
2001, and on an as adjusted basis after taking into account the consummation of
the Transaction based on the assumptions set forth therein. The historical
information included in the As Adjusted Balance Sheet has been prepared in
accordance with GAAP, consistently applied subject to normal year end and
quarterly reserve and audit adjustments.
(d) The financial projections of Holdings and its Subsidiaries
set forth on Schedule 5.12(d) heretofore delivered to the Purchasers (i) are the
most current financial projections prepared by Holdings relating to the periods
covered thereby, and (ii) are based on assumptions which each Borrower and
Holdings believed to be reasonable when made and such assumptions and
projections are believed by each of Borrower and Holdings to be reasonable on
the date hereof, in light of current conditions and current facts known by them.
Neither Holdings nor any of its Subsidiaries has delivered to any Person any
similar later dated projections.
5.13 [Intentionally Omitted]
26
<PAGE>
5.14 DISCLOSURE.
(a) Agreement and Other Documents. This Agreement, together
with all exhibits and schedules hereto, and the agreements, certificates and
other documents furnished to the Purchasers by Holdings and its Subsidiaries at
the Closing, do not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements contained herein
or therein, in the light of the circumstances under which they were made, not
misleading.
(b) Material Adverse Effects. There is no fact known to the
Borrower or Holdings, which has or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
5.15 ABSENCE OF CERTAIN CHANGES OR EVENTS.
(a) Since September 30, 2001, except as (a) set forth on
Schedule 5.15, (b) may result in connection with the consummation of the
Transaction, (c) as disclosed in the SEC Filings, or (d) occurring in the
ordinary course of business, neither Holdings nor any of its Subsidiaries has
(i) issued any stock, bonds or other corporate securities, (ii) borrowed any
amount or incurred any liabilities (absolute or contingent), in excess of
$100,000, (iii) discharged or satisfied any Lien (other than Customary Permitted
Liens) or incurred or paid any obligation or liability (absolute or contingent),
in excess of $100,000, (iv) declared or made any payment or distribution to
stockholders or purchased or redeemed any shares of its capital stock or other
securities, (v) mortgaged, pledged or subjected to Lien (other than Customary
Permitted Liens) any of its material assets, tangible or intangible, (vi) sold,
assigned or transferred any of its material tangible assets, or canceled any
debts or claims, (vii) sold, assigned or transferred any material patents,
trademarks, trade names, copyrights, trade secrets or other intangible assets,
(viii) suffered any material losses of property, or waived any material rights
of substantial value, (ix) expended any material amount, granted any bonuses or
extraordinary salary increases, (x) entered into any transaction involving
consideration in excess of $150,000 or (xi) entered into any agreement or
transaction, or amended or terminated any agreement, with an Affiliate.
(b) To the knowledge of the Borrower and Holdings and except
as set forth on Schedule 5.15, no material adverse change in the Condition of
the Borrower is threatened or reasonably expected to occur. Since September 30,
2001, except as set forth on Schedule 5.15 and except as disclosed in the SEC
Filings, there has been no Material Adverse Effect.
5.16 ENVIRONMENTAL MATTERS. Except as described on Schedule 5.16:
(a) The assets and operations of Holdings and its Subsidiaries
are and have been in material compliance with all applicable Environmental Laws;
there are no Hazardous Materials stored or otherwise located in, on or under any
of the property or assets of Holdings or its Subsidiaries, including, without
limitation, the soil, substrata, and groundwater, except in material compliance
with applicable Environmental Laws; and there have been no releases or
threatened releases of Hazardous Materials in, on, under or adjacent to any of
the property or assets currently leased by Holdings or its Subsidiaries which
have not been remediated to the satisfaction of the appropriate Governmental
Authorities.
(b) None of the property, assets or operations of Holdings or
its Subsidiaries is the subject of any investigation by a Governmental Authority
evaluating whether (i) any remedial action
27
<PAGE>
is needed to respond to a release or threatened release of any Hazardous
Materials into the environment or (ii) any release or threatened release of any
Hazardous Materials into the environment is in contravention of any
Environmental Law.
(c) Neither Holdings nor any of its Subsidiaries has received
any notice, claim or demand letter, nor are there pending, threatened or
reasonably anticipated, lawsuits, actions or proceedings against any of them,
with respect to violations of an Environmental Law or in connection with the
presence of or exposure to any Hazardous Materials in the environment or any
release or threatened release of any Hazardous Materials into the environment,
and neither the Borrower nor its Subsidiaries is or was the owner or operator of
any property which (i) pursuant to any Environmental Law has been placed on any
list of Hazardous Materials disposal sites, including, without limitation, the
"National Priorities List" or "CERCLIS List" or equivalent state list, (ii) has,
or had, any underground storage tanks located thereon for which Holdings or its
Subsidiaries is an owner or operator, or (iii) has ever been used as or for a
waste disposal facility, a mine, a gasoline service station or, other than for
petroleum chemical substances stored in the ordinary course of business, a
petroleum chemical products storage facility.
(d) Neither Holdings nor any of its Subsidiaries has any
present or contingent liability in connection with the presence either in, on,
under, adjacent to, or off the property currently or previously leased at any
time after January 1, 1994, or assets currently or previously owned by Holdings
or its Subsidiaries of any Hazardous Materials in the environment resulting from
the operations of Holdings and its Subsidiaries or for which either Holdings or
its Subsidiaries are contractually or legally responsible or any release or
threatened release by Holdings or its Subsidiaries of any Hazardous Materials
into the environment at any location.
(e) The summaries of environmental matters disclosed on
Schedule 5.16 are true and correct as of the Closing Date and include all known
material environmental liabilities associated with (i) Holdings, and its
Subsidiaries, current or formerly leased properties and (ii) all third party
sites where Holdings and its Subsidiaries have been identified as potentially
responsible parties under CERCLA or similar state statutes.
5.17 INVESTMENT BORROWER/GOVERNMENT REGULATIONS. None of Holdings or
its Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended. None of Holdings or its Subsidiaries is subject
to regulation under the Public Utility Holding Borrower Act of 1935, as amended,
the Federal Power Act, or the Interstate Commerce Act.
5.18 SUBSIDIARIES.
(a) All of the outstanding shares of capital stock of, or
other equity interests in, the Subsidiaries are validly issued, fully paid and
nonassessable. Except as set forth on Schedule 5.18, as of the Closing Date, all
of the outstanding shares of capital stock of, or other ownership interests in,
each of the Subsidiaries are owned by Holdings or by a wholly owned Subsidiary
free and clear of any Liens (other than Customary Permitted Liens). No
Subsidiary has outstanding options, warrants, subscriptions, calls, rights,
convertible securities or other agreements or commitments obligating the
Subsidiary to issue, transfer or sell any securities of the Subsidiary.
(b) Except for the Subsidiaries of Holdings set forth on
Schedule 5.18, Holdings does not own of record or beneficially, directly or
indirectly, (i) any shares of outstanding capital
28
<PAGE>
stock or securities convertible into capital stock of any other corporation, and
(ii) except as set forth in Schedule 5.18(b), any equity, voting or
participating interest in any limited liability company, partnership, joint
venture or other non-corporate business enterprises.
5.19 CAPITALIZATION.
(a) The authorized capital stock of Holdings as of the date
hereof, consists solely of 80,000,000 shares of Common Stock and 10,000,000
shares of preferred stock, of which 800,000 shares of preferred stock have been
designated Series A Junior Participating Preferred Stock. As of December 10,
2001, 18,495,990 shares of Common Stock are issued and outstanding, along with
2,912,434 options to purchase shares of Common Stock (whether vested or unvested
as of the date hereof). Schedule 5.19 contains the aggregate number of all
outstanding options to purchase shares of Common Stock, the weighted average
exercise price with respect to such options and the plan or other arrangements
pursuant to which such options were issued. Except as set forth in the preceding
sentences, as contemplated pursuant to the Transaction, or as set forth on
Schedule 5.19, there are no other shares of capital stock or other equity
securities of Holdings issued and outstanding or reserved for issuance. The
Mezzanine Equity shall, upon issuance as contemplated hereby, be validly issued,
fully paid and nonassessable and shall be free of any preemptive or similar
rights. The issuance of the foregoing securities was not done in violation of
any preemptive rights in favor of any Person and did not trigger any
anti-dilution rights contained in any options, warrants, debentures or other
securities or agreements. The issuance of the securities contemplated by the
Transaction (including common stock issuable upon conversion of preferred stock
pursuant to the Certificates of Designation) will not be subject to preemptive
rights in favor of any Person or trigger any anti-dilution rights contained in
any options, warrants, debentures or other securities or agreements in effect on
the date hereof. To the Knowledge of Holdings or Borrower, all outstanding
shares of capital stock have been issued in compliance with the Securities Act
and all applicable state securities laws, and no shares of capital stock of
Holdings are subject to, nor have any been issued in violation of, any
preemptive or similar rights.
(b) Except as set forth above in paragraph (a) of this Section
5.19, as contemplated by this Agreement or as set forth on Schedule 5.19, there
are outstanding (i) no shares of capital stock or other voting securities of
Holdings; (ii) no securities of Holdings convertible into or exchangeable or
exercisable for shares of capital stock or other voting securities of Holdings;
(iii) no subscriptions, options, warrants, calls, commitments, preemptive rights
or other rights of any kind to acquire from Holdings, and no obligation of
Holdings to issue or sell, any shares of capital stock or other voting
securities of Holdings or any securities of Holdings convertible into or
exchangeable for such capital stock or voting securities, except as may arise
pursuant to the securities to be issued pursuant to the Transaction, and (iv) no
equity equivalents, interests in the ownership or earnings or other similar
rights of or with respect to Holdings. Except as may arise pursuant to the terms
of the securities to be issued pursuant to the Transaction, there are no
outstanding contractual obligations of Holdings to repurchase, redeem or
otherwise acquire any shares of Common Stock or any other securities of the type
described in clauses (i)-(iv) of the preceding sentence. Except as may arise
pursuant to the securities to be issued pursuant to the Transaction or
applicable securities laws, there are no restrictions upon the voting or
transfer of any share of the capital stock or other voting securities of
Holdings pursuant to the Certificate of Incorporation, the Bylaws or other
governing documents or any agreement or other instrument to which Holdings is
party or by which Holdings is bound other than restricted stock held by certain
employees.
29
<PAGE>
5.20 PRIVATE OFFERING. No form of general solicitation or general
advertising was used by Holdings or any of its Subsidiaries, or their respective
representatives in connection with the offer or sale of the Securities. Provided
that the Purchasers representations and warranties herein are true, no
registration of the Securities pursuant to the provisions of the Securities Act
or the state securities or "blue sky" laws will be required for the offer, sale
or issuance of the Securities pursuant to this Agreement. Borrower and Holdings
each agree that neither it, nor anyone acting on its behalf, will offer or sell
the Securities or any other security so as to require the registration of the
Securities pursuant to the provisions of the Securities Act or any state
securities or "blue sky" laws.
5.21 BROKER'S, FINDER'S OR SIMILAR FEES. Except as set forth on
Schedule 5.21, there are no brokerage commissions, finder's fees or similar fees
or commissions payable in connection with the Note Transactions.
5.22 LABOR RELATIONS. Neither Holdings nor any of its Subsidiaries has
committed or has engaged during the last six (6) months in any material unfair
labor practice within the meaning of the National Labor Relations Act. Except as
set forth in Schedule 5.22, there is (a) no unfair labor practice complaint
pending or to the knowledge of Holdings or any of its Subsidiaries threatened
against Holdings or any of its Subsidiaries before the National Labor Relations
Board and no grievance or arbitration proceeding arising out of or under
collective bargaining agreements is so pending or, to the knowledge of Holdings
or any of its Subsidiaries, threatened, (b) no strike, labor dispute, slowdown
or stoppage pending or to the knowledge of Holdings or any of its Subsidiaries
threatened against Holdings or any of its Subsidiaries, (c) no union |
