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EXHIBIT 4.2
Execution Version
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ALLIED HOLDINGS, INC.
AND
THE GUARANTORS NAMED ON THE SIGNATURE PAGES HERETO
$150,000,000
8 5/8% Senior Notes due 2007
Purchase Agreement
September 19, 1997
BEAR, XXXXXXX & CO. INC.
BT ALEX. XXXXX INCORPORATED
NATIONSBANC CAPITAL MARKETS, INC.
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ALLIED HOLDINGS, INC.
$150,000,000
8 5/8% Senior Notes due 2007
PURCHASE AGREEMENT
September 19, 1997
New York, New York
BEAR, XXXXXXX & CO. INC.
BT ALEX. XXXXX INCORPORATED
NATIONSBANC CAPITAL MARKETS, INC.
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies & Gentlemen:
Allied Holdings, Inc., a Georgia corporation (the "Company"),
proposes to issue and sell to Bear, Xxxxxxx & Co. Inc., BT Alex. Xxxxx
Incorporated NationsBanc Capital Markets, Inc. (together, the "Initial
Purchasers") $150,000,000 in aggregate principal amount of 8 5/8% Series A
Senior Notes due 2007 (the "Series A Notes"), subject to the terms and
conditions set forth herein. The Series A Notes will be issued pursuant to an
indenture (the "Indenture"), to be dated the Closing Date (as defined), among
the Company, the Guarantors (as defined) and The First National Bank of
Chicago, as trustee (the "Trustee"). The Series A Notes will be fully and
unconditionally guaranteed (the "Guarantees" and, together with the Series A
Notes, the "Securities") as to payment of principal, interest, Liquidated
Damages and premium, if any, on an unsecured senior basis, jointly and
severally, by each entity listed on Exhibit A hereto (collectively, the "Allied
Guarantors") and by each entity listed on Exhibit B hereto (collectively, the
"Ryder Guarantors" and, together with the Allied Guarantors, the "Guarantors"
and, together with the Company, the "Issuers") that will be acquired by the
Company pursuant to the Acquisition (as defined). Capitalized terms used
herein and not otherwise defined shall have the meanings assigned to such terms
in the Indenture.
The offering of the Securities is being made in connection
with the acquisition (the "Acquisition") by the Company of Ryder Automotive
Carrier Services, Inc., RC Management Corp. and certain related assets
("Ryder"), pursuant to that certain Acquisition Agreement by and among the
Company, A H Acquisition Corp., Canadian Acquisition Corp., Axis North America,
Inc. and Ryder System, Inc. (together with all schedules, ancillary agreements
and any side- letters entered into in connection with the Acquisition, the
"Acquisition Agreement"), dated August 20, 1997.
1. Issuance of Securities. The Issuers propose, upon the terms
and subject to the conditions set forth herein, to issue and sell to the
Initial Purchasers an aggregate of $150,000,000 in principal amount of
Securities. The Series A Notes and the Series B Notes (as defined) issuable in
exchange therefor are collectively referred to herein as the "Notes."
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Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Securities Act of
1933, as amended (the "Act"), the Series A Notes (and all securities issued in
exchange therefor or in substitution thereof) shall bear the following legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX
XXX XXXXXX XXXXXX SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY
EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS NOT A
U.S. PERSON AND IS NOT ACQUIRING THIS SECURITY FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT
OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT. THE HOLDER OF
THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT), IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A
FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904
UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE
COMPANY, (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
2. Offering. The Securities will be offered and sold to the
Initial Purchasers pursuant to an exemption from the registration requirements
under the Act. The Company has prepared a preliminary offering memorandum,
dated August 28, 1997 (the "Preliminary Offering Memorandum"), and a final
offering memorandum, dated the date hereof (the "Offering Memorandum"),
relating to the Issuers, the Acquisition and the Securities.
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The Initial Purchasers have advised the Company that the Initial
Purchasers will make offers (the "Exempt Resales") of the Securities on the
terms set forth in the Offering Memorandum, as amended or supplemented, solely
to (i) persons whom the Initial Purchasers reasonably believe to be "qualified
institutional buyers," as defined in Rule 144A under the Act ("QIBs"), and (ii)
non-U.S. persons outside the United States in reliance upon Regulation S
("Regulation S") under the Act ("Reg S Investors"). The QIBs and Reg S
Investors are collectively referred to herein as the "Eligible Purchasers."
The Initial Purchasers will offer the Securities to such Eligible Purchasers
initially at a price equal to 100% of the principal amount thereof. Such price
may be changed at any time without notice.
Holders (including subsequent transferees) of the Securities will have
the registration rights set forth in the registration rights agreement relating
thereto (the "Registration Rights Agreement"), to be substantially in the form
of Exhibit F hereto and dated the Closing Date, for so long as such Securities
constitute "Transfer Restricted Securities" (as defined in the Registration
Rights Agreement). Pursuant to the Registration Rights Agreement, the Issuers
will agree to file with the Securities and Exchange Commission (the
"Commission"), under the circumstances set forth therein, (i) a registration
statement under the Act (the "Exchange Offer Registration Statement") relating
to the 8 5/8% Series B Notes due 2007 (the "Series B Notes") and the guarantees
thereof by the Guarantors, (the "Series B Guarantees" and, together with the
Series B Notes, the "Exchange Securities") to be offered in exchange for the
Securities (the "Exchange Offer") and (ii) a shelf registration statement
pursuant to Rule 415 under the Act (the "Shelf Registration Statement" and,
together with the Exchange Offer Registration Statement, the "Registration
Statements") relating to the resale by certain holders of the Securities, and
to use their reasonable best efforts to cause such Registration Statements to
be declared effective and to consummate the Exchange Offer. This Agreement,
the Notes, the Guarantees, the Series B Guarantees, the Indenture, the
Registration Rights Agreement, the Acquisition Agreement and the New Credit
Facility (as defined in the Offering Memorandum) are hereinafter referred to
collectively as the "Operative Documents."
3. Purchase, Sale and Delivery. (a) On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to its terms and conditions, the Company and the Allied Guarantors
agree to issue and sell (and to cause the Ryder Guarantors to issue and sell)
to each Initial Purchaser, and each Initial Purchaser agrees, severally and not
jointly, to purchase from the Issuers, the principal amount of Securities set
forth opposite its name on Schedule I hereto. The purchase price for the
Securities will be $970 per $1,000 principal amount Series A Notes.
(b) Delivery of the Securities shall be made, against payment of the
purchase price therefor, at the offices of Xxxxxxxx Xxxxxxx LLP, Atlanta,
Georgia or such other location as may be mutually acceptable. Such delivery
and payment shall be made at 9:00 a.m., New York City time, on September 30,
1997 or at such other time as shall be agreed upon by the Initial Purchasers
and the Company. The time and date of such delivery and payment are herein
called the "Closing Date."
(c) On the Closing Date, one or more Securities in definitive form,
registered in the name of Cede & Co., as nominee of The Depository Trust
Company ("DTC"), having an aggregate amount corresponding to the aggregate
amount of the Securities sold pursuant to Exempt Resales to Eligible Purchasers
(the "Global Note") shall be delivered by the Issuers to the Initial Purchasers
(or as the Initial Purchasers direct), against payment by the Initial
Purchasers of the purchase price therefor, by wire transfer of same day funds,
to an account designated by the Company, provided that the Company shall give
at least two business days' prior written notice to the Initial Purchasers of
the information required to effect such wire transfer. The Global Note shall
be made available to the Initial Purchasers for inspection not later than 9:30
a.m. New York City time, on the business day immediately preceding the Closing
Date.
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4. Agreements of the Company and the Allied Guarantors. The
Company and the Allied Guarantors, jointly and severally, covenant and agree
with the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if
requested by the Initial Purchasers, confirm such advice in writing,
(i) of the issuance by any state securities commission of any stop
order suspending the qualification or exemption from qualification of
any Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purpose by any state securities
commission or other regulatory authority and (ii) of the happening of
any event that makes any statement of a material fact made in the
Preliminary Offering Memorandum or the Offering Memorandum untrue or
that requires the making of any additions to or changes in the
Preliminary Offering Memorandum or the Offering Memorandum in order to
make the statements therein, in the light of the circumstances under
which they are made, not misleading. The Company and the Allied
Guarantors shall use their reasonable best efforts to prevent the
issuance of any stop order or order suspending the qualification or
exemption of any Securities under any state securities or Blue Sky
laws and, if at any time any state securities commission or other
regulatory authority shall issue an order suspending the qualification
or exemption of any Securities under any state securities or Blue Sky
laws, the Company and the Allied Guarantors shall use their best
efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
(b) To furnish the Initial Purchasers and those persons
identified by the Initial Purchasers to the Company, without charge,
as many copies of the Preliminary Offering Memorandum and the Offering
Memorandum, including all documents incorporated therein by reference,
and any amendments or supplements thereto, as the Initial Purchasers
may reasonably request. The Company and the Allied Guarantors consent
to the use of the Preliminary Offering Memorandum and the Offering
Memorandum, and any amendments and supplements thereto required
pursuant hereto, by the Initial Purchasers in connection with Exempt
Resales.
(c) Not to amend or supplement the Preliminary Offering
Memorandum or the Offering Memorandum prior to the Closing Date unless
the Initial Purchasers shall previously have been advised thereof and
shall not have made a reasonable objection thereto within a reasonable
time after being furnished a copy thereof. The Company and the Allied
Guarantors shall promptly prepare, upon the Initial Purchasers'
request, any amendment or supplement to the Preliminary Offering
Memorandum or the Offering Memorandum that may be reasonably necessary
or advisable in connection with Exempt Resales.
(d) If, after the date hereof and prior to consummation of
any Exempt Resale, any event shall occur as a result of which, in the
judgment of the Company and the Allied Guarantors or in the reasonable
opinion of counsel for the Company and the Allied Guarantors or
counsel for the Initial Purchasers, it becomes necessary or advisable
to amend or supplement the Preliminary Offering Memorandum or Offering
Memorandum in order to make the statements therein, in the light of
the circumstances when such Offering Memorandum is delivered to an
Eligible Purchaser which is a prospective purchaser, not misleading,
or if it is necessary or advisable to amend or supplement the
Preliminary Offering Memorandum or Offering Memorandum to comply with
applicable law, (i) to notify the Initial Purchasers and (ii)
forthwith to prepare an appropriate amendment or supplement to such
Preliminary Offering Memorandum or Offering Memorandum so that the
statements therein as so amended or supplemented will not, in the
light of the circumstances when it is so delivered, be misleading, or
so that such Preliminary Offering Memorandum or Offering Memorandum
will comply with applicable law.
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(e) To cooperate with the Initial Purchasers and counsel for
the Initial Purchasers in connection with the qualification or
registration of the Securities under the securities or Blue Sky laws
of such jurisdictions as the Initial Purchasers may reasonably request
and to continue such qualification in effect so long as required for
the Exempt Resales; provided, however, that none of the Company or the
Allied Guarantors shall be required in connection therewith to
register or qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to service of
process in suits or taxation, in each case, other than as to matters
and transactions relating to the Preliminary Offering Memorandum, the
Offering Memorandum or Exempt Resales, in any jurisdiction where it is
not now so subject.
(f) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement becomes effective or is
terminated, to pay all costs, expenses, fees and taxes incident to the
performance of the obligations of the Company and the Allied
Guarantors hereunder, including in connection with: (i) the
preparation, printing, filing and distribution of the Preliminary
Offering Memorandum and the Offering Memorandum (including, without
limitation, financial statements) and all amendments and supplements
thereto required pursuant hereto, (ii) the preparation (including,
without limitation, duplication costs) and delivery of all agreements,
correspondence and all other documents prepared and delivered in
connection herewith and with the Exempt Resales, (iii) the issuance,
transfer and delivery of the Securities to the Initial Purchasers,
(iv) the qualification or registration of the Securities for offer and
sale under the securities or Blue Sky laws of the several states
(including, without limitation, the cost of printing and mailing a
preliminary and final Blue Sky Memorandum and the reasonable fees and
disbursements of counsel for the Initial Purchasers relating thereto),
(v) furnishing such copies of the Preliminary Offering Memorandum and
the Offering Memorandum, and all amendments and supplements thereto,
as may be requested for use in connection with Exempt Resales, (vi)
the preparation of certificates for the Securities (including, without
limitation, printing and engraving thereof), (vii) the fees,
disbursements and expenses of the Issuers' counsel and accountants,
(viii) all fees and expenses (including fees and expenses of counsel)
of the Company in connection with the approval of the Notes by DTC for
"book-entry" transfer, (ix) rating the Securities by rating agencies,
(x) the fees and expenses of the Trustee and its counsel, (xi) the
performance by the Issuers of their obligations under the other
Operative Documents and (xii) "roadshow" travel and other expenses
incurred in connection with the marketing and sale of the Securities.
(g) To use the proceeds from the sale of the Securities in
the manner described in the Offering Memorandum under the caption "Use
of Proceeds."
(h) Not to voluntarily claim, and to resist actively any
attempts to claim, the benefit of any usury laws against the holders
of any Securities or Exchange Securities.
(i) To do and perform all things required to be done and
performed under this Agreement by them prior to or after the Closing
Date and to satisfy all conditions precedent on their part to the
delivery of the Securities.
(j) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act)
that would be integrated with the sale of the Securities in a manner
that would require the registration under the Act of the sale to the
Initial Purchasers or the Eligible Purchasers of the Securities or to
take any other action that would result in the Exempt Resales not
being exempt from registration under the Act.
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(k) For so long as any of the Securities remain outstanding
and during any period in which the Issuers are not subject to Section
13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), to make available to any holder or beneficial owner
of Securities in connection with any sale thereof and any prospective
purchaser of such Securities from such holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Act.
(l) To comply with all of their agreements set forth in the
Registration Rights Agreement and all agreements set forth in the
representation letters of the Company to DTC relating to the approval
of the Securities by DTC for "book-entry" transfer.
(m) To effect the inclusion of the Securities in PORTAL and
to obtain approval of the Securities by DTC for "book-entry" transfer.
(n) During a period of five years following the Closing Date,
to deliver without charge to the Initial Purchasers, as they may
reasonably request, promptly upon their becoming available, copies of
(i) all reports or other publicly available information that the
Company and/or Guarantors shall mail or otherwise make available to
their securityholders and (ii) all reports, financial statements and
proxy or information statements filed by the Company and/or Guarantors
with the Commission or any national securities exchange and such other
publicly available information concerning the Company and/or
Guarantors or any of their subsidiaries, including without limitation,
press releases.
(o) Prior to the Closing Date, to furnish to the Initial
Purchasers, as soon as they have been prepared in the ordinary course
by the Company and each Guarantor, copies of any unaudited interim
financial statements for any period subsequent to the periods covered
by the financial statements appearing in the Offering Memorandum.
(p) Not to take, directly or indirectly, any action designed
to, or that might reasonably be expected to, cause or result in
stabilization or manipulation of the price of any security of the
Company or any of the Guarantors to facilitate the sale or resale of
the Securities. Except as permitted by the Act, the Company and the
Allied Guarantors will not (and will not permit the Ryder Guarantors
to) distribute any (i) preliminary offering memorandum, including,
without limitation, the Preliminary Offering Memorandum, (ii) offering
memorandum, including, without limitation, the Offering Memorandum, or
(iii) other offering material in connection with the offering and sale
of the Notes.
(q) To cause the Ryder Guarantors to authorize, execute and
deliver this Agreement, the Registration Rights Agreement, the
Guarantees and the Indenture.
(r) To use their best efforts to do and perform all things
required or necessary to be done and performed under this Agreement
prior to the Closing Date and to satisfy all conditions precedent to
the delivery of the Securities.
5. Representations and Warranties. (a) The Company and the
Allied Guarantors, jointly and severally, represent and warrant to each of the
Initial Purchasers that (all of such representations and warranties shall be
deemed to include Ryder, and all references to the Issuers and their
non-Guarantor Subsidiaries in this Section 5 shall assume that the Acquisition
has been consummated as of the date hereof in accordance with the terms and
conditions of the Acquisition Agreement):
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(i) All of the representations and warranties of the parties
to the Acquisition Agreement made in the Acquisition Agreement are
true and correct as if made on and as of the date hereof and the
Closing Date.
(ii) The Preliminary Offering Memorandum as of its date does
not, and the Offering Memorandum as of its date and as of the Closing
Date does not and will not, and any supplement or amendment to them
will not, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the representations and warranties contained in this paragraph shall
not apply to statements in or omissions from the Preliminary Offering
Memorandum and the Offering Memorandum (or any supplement or amendment
thereto) made in reliance upon and in conformity with information
relating to an Initial Purchaser furnished to the Company in writing
by such Initial Purchaser expressly for use therein. No stop order
preventing the use of the Preliminary Offering Memorandum or the
Offering Memorandum, or any amendment or supplement thereto, or any
order asserting that any of the transactions contemplated by this
Agreement are subject to the registration requirements of the Act, has
been issued.
(iii) (A) The documents incorporated by reference in the
Offering Memorandum, when they became effective or were filed with the
Commission or were amended, as the case may be, did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; (B) the documents incorporated by reference in
the Offering Memorandum when they became effective or were filed with
the Commission or were amended, as the case may be, conformed in all
material respects to the requirements of the Exchange Act; and (C) any
further documents so filed and incorporated by reference in the
Offering Memorandum or any further amendment or supplement hereto,
when such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Exchange Act.
(iv) Each of the Issuers and their non-Guarantor subsidiaries
(A) has been duly incorporated or otherwise formed and is validly
existing as a corporation or limited partnership, as the case may be,
in good standing under the laws of its jurisdiction of formation; (B)
has all requisite corporate or partnership power and authority, as the
case may be, to carry on its business as it is currently being
conducted and as described in the Offering Memorandum and to own,
lease and operate its properties; and (C) is duly qualified and in
good standing as a foreign corporation or limited partnership, as the
case may be, authorized to do business in each jurisdiction in which
the nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so
qualified could reasonably be expected to (x) result, individually or
in the aggregate, in a material adverse effect on the properties,
business, results of operations, condition (financial or otherwise),
affairs or prospects of the Issuers and their non-Guarantor
subsidiaries, taken as a whole, (y) interfere with or adversely affect
the issuance or marketability of the Securities pursuant hereto or (z)
in any manner draw into question the validity of this Agreement or any
other Operative Document or the transactions described in the Offering
Memorandum under the captions "The Acquisition" and "Use of Proceeds"
(any of the events set forth in clauses (x), (y) or (z), a "Material
Adverse Effect").
(v) The Company has no subsidiaries other than the Allied
Guarantors and the entities listed on Exhibit C (the "Allied Foreign
Subsidiaries"); after giving effect to the Acquisition, the
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Company will have no subsidiaries other than the Guarantors, the
Allied Foreign Subsidiaries and the entities listed on Exhibit D (the
"Ryder Foreign Subsidiaries").
(vi) All of the outstanding capital stock of each subsidiary
(other than Allied Systems, Ltd.) of the Company is owned by the
Company, free and clear of any security interest, claim, lien,
limitation on voting rights or encumbrance, except for any such
security interest, claim, lien, limitation on voting rights or
encumbrance pursuant to the New Credit Facility; and all such
securities have been duly authorized, validly issued, and are fully
paid and nonassessable and were not issued in violation of any
preemptive or similar rights. The Company owns, directly or through
its subsidiaries, the sole general partnership interest in Allied
Systems, Ltd., free and clear of any security interest, claim, lien,
limitation on voting rights or encumbrance, except for any such
security interest, claim, lien, limitation on voting rights or
encumbrance pursuant to the New Credit Facility. The Company's
general partnership interest, including the interest owned by its
subsidiaries, in Allied Systems, Ltd. represents the right to 99% of
the profits and losses of Allied Systems, Ltd. and the sole limited
partners of Allied Systems Ltd. are subsidiaries of the Company.
(vii) There are not currently any outstanding subscriptions,
rights, warrants, calls, commitments of sale or options to acquire, or
instruments convertible into or exchangeable for, any capital stock or
other equity interest of the Company's subsidiaries.
(viii) When the Securities are issued and delivered pursuant
to this Agreement, none of the Securities will be of the same class
(within the meaning of Rule 144A under the Act) as securities of any
of the Issuers that are listed on a national securities exchange
registered under Section 6 of the Exchange Act or that are quoted in a
United States automated inter-dealer quotation system.
(ix) Each of the Issuers has all requisite corporate power
and authority to execute, deliver and perform its obligations under
this Agreement and each of the other Operative Documents to which it
is a party and to consummate the transactions contemplated hereby and
thereby, including, without limitation, the corporate power and
authority to issue, sell and deliver the Securities and the Exchange
Securities as provided herein and therein.
(x) This Agreement has been duly and validly authorized,
executed and delivered by each of the Company and the Allied
Guarantors and is the legal, valid and binding agreement of each of
the Company and the Allied Guarantors, enforceable against each of
them in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity.
(xi) The Indenture has been duly and validly authorized by
each of the Company and the Allied Guarantors and, when duly executed
and delivered by each of the Company and the Allied Guarantors, will
be the legal, valid and binding obligation of each of the Company and
the Allied Guarantors, enforceable against each of them in accordance
with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar laws affecting the
rights of creditors generally and subject to general principles of
equity. On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules
and regulations of the Commission applicable to an indenture which is
qualified thereunder. The Offering Memorandum contains a summary of
the terms of the Indenture, which is accurate in all material
respects.
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(xii) The Registration Rights Agreement has been duly and
validly authorized by each of the Company and the Allied Guarantors
and, when duly executed and delivered by each of the Company and the
Allied Guarantors, will be the legal, valid and binding obligation of
each of the Company and the Allied Guarantors, enforceable against
each of them in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization or
similar laws affecting the rights of creditors generally and subject
to general principles of equity. The Offering Memorandum contains a
summary of the terms of the Registration Rights Agreement, which is
accurate in all material respects.
(xiii) The New Credit Facility has been duly and validly
authorized by each of the Company and its subsidiaries party thereto
and, when duly executed and delivered by each of the Company and such
subsidiaries, will be the legal, valid and binding obligation of each
of the Company and such subsidiaries, enforceable against each of them
in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity. The Offering Memorandum contains a summary of
the terms of the New Credit Facility, which is accurate in all
material respects. The Company will have at least $100.0 million of
borrowings available to it under the New Credit Facility (giving
effect to the borrowing base requirements of the New Credit Agreement)
after the closing of the sale of Securities hereunder, the receipt by
the Company of the proceeds therefore, initial borrowings under the
New Credit Facility (as described in the Offering Memorandum under the
caption "Capitalization") and the consummation of the Acquisition.
(xiv) The Acquisition Agreement has been duly and validly
authorized, executed and delivered by the Company and the Company's
subsidiaries that are parties thereto and is the legal, valid and
binding obligation of the Company and the Company's subsidiaries that
are parties thereto, enforceable against each of them in accordance
with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar laws affecting the
rights of creditors generally and subject to general principles of
equity. The Offering Memorandum contains a summary of the terms of
the Acquisition Agreement, which is accurate in all material respects.
(xv) The Series A Notes have been duly and validly authorized
by the Company for issuance and sale to the Initial Purchasers
pursuant to this Agreement and, when issued and authenticated in
accordance with the terms of the Indenture and delivered against
payment therefor in accordance with the terms hereof and thereof, will
be the legal, valid and binding obligations of the Company,
enforceable against it in accordance with their terms and entitled to
the benefits of the Indenture, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity. The Offering Memorandum contains a summary of
the terms of the Notes, which is accurate in all material respects.
(xvi) The Series B Notes have been duly and validly
authorized for issuance by the Company and, when issued and
authenticated in accordance with the terms of the Exchange Offer and
the Indenture, will be the legal, valid and binding obligations of the
Company, enforceable against it in accordance with their terms and
entitled to the benefits of the Indenture, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization or
similar laws affecting the rights of creditors generally and subject
to general principles of equity.
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(xvii) The Guarantees of the Series A Notes have been duly
and validly authorized by each of the Allied Guarantors and, when
executed and delivered in accordance with the terms of the Indenture
and when the Series A Notes have been issued and authenticated in
accordance with the terms of the Indenture and delivered against
payment therefor in accordance with the terms hereof and thereof, will
be the legal, valid and binding obligations of each of the Allied
Guarantors, enforceable against each of them in accordance with their
terms and entitled to the benefits of the Indenture, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity. The Offering
Memorandum contains a summary of the terms of the Guarantees, which is
accurate in all material respects.
(xviii) The Series B Guarantees have been duly and validly
authorized by each of the Allied Guarantors and, when executed and
delivered in accordance with the terms of the Indenture and when the
Series B Notes have been issued and authenticated in accordance with
the terms of the Exchange Offer and the Indenture, will be the legal,
valid and binding obligations of each of the Allied Guarantors,
enforceable against each of them in accordance with their terms and
entitled to the benefits of the Indenture, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization or
similar laws affecting the rights of creditors generally and subject
to general principles of equity.
(xix) The statistical and market-related data included in the
Offering Memorandum are based on or derived from sources which the
Company believes to be reliable and accurate in all material respects.
(xx) Each of the Company and its subsidiaries is not and,
after giving effect to the Offering and the Acquisition, will not be,
(A) in violation of its charter or bylaws: (B) in default in the
performance of any bond, debenture, note, indenture, mortgage, deed of
trust or other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties is subject, which
singly or in the aggregate, could reasonably be expected to have a
Material Adverse Effect; or (C) in violation of any local, state,
federal or foreign law, statute, ordinance, rule, regulation,
requirement, judgment or court decree (including, without limitation,
environmental laws, statutes, ordinances, rules, regulations,
judgments or court decrees) applicable to it or any of its
subsidiaries or any of its or their assets or properties (whether
owned or leased), which singly or in the aggregate, could reasonably
be expected to have a Material Adverse Effect. To the best knowledge
of the Company and the Allied Guarantors, there exists no condition
that, with notice, the passage of time or otherwise, would constitute
a default under any such document or instrument.
(xxi) None of (A) the execution, delivery or performance by
any of the Issuers of this Agreement or any of the other Operative
Documents to which it is a party; (B) the consummation of the
Acquisition; (C) the issuance and sale of the Securities or the
Exchange Securities and (D) consummation by the Issuers of the
transactions described in the Offering Memorandum under the captions
"The Acquisition" and "Use of Proceeds," violates, conflicts with or
constitutes a breach of any of the terms or provisions of, or, after
giving effect to the Acquisition, will violate, conflict with or
constitute a breach of any of the terms or provisions of, or a default
under (or an event that with notice or the lapse of time, or both,
would constitute a default), or require consent under, or result in
the imposition of a lien or encumbrance on any properties of the
Company or any of its subsidiaries, or an acceleration of any
indebtedness of the Company or any of its subsidiaries pursuant to,
(1) the charter or bylaws of the Company or any of its
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subsidiaries, (2) any bond, debenture, note, indenture, mortgage, deed
of trust or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which any of them or their
property is or may be bound, (3) any statute, rule or regulation
applicable to the Company or any of its subsidiaries or any of their
assets or properties or (4) any judgment, order or decree of any court
or governmental agency or authority having jurisdiction over the
Company or any of its subsidiaries or any of their assets or
properties. No consent, approval, authorization or order of, or
filing, registration, qualification, license or permit of or with, (A)
any court or governmental agency, body or administrative agency or (B)
any other person is required for (1) the execution, delivery and
performance by any of the Issuers of this Agreement or any of the
other Operative Documents to which it is a party, (2) the Acquisition
or (3) the issuance and sale of the Securities, the issuance of the
Exchange Securities and the transactions contemplated hereby and
thereby, except such as have been or will be obtained and made on or
prior to the Closing Date (or, in the case of the Registration Rights
Agreement and the Exchange Securities, will be obtained and made under
the Act, the Trust Indenture Act, and state securities or Blue Sky
laws and regulations).
(xxii) There is and, after giving effect to the Acquisition,
will be (A) no action, suit, investigation or proceeding before or by
any court, arbitrator or governmental agency, body or official,
domestic or foreign, now pending or, to the best knowledge of the
Company and the Allied Guarantors, threatened or contemplated to which
the Company or any of its subsidiaries (including subsidiaries to be
acquired in the Acquisition) is or may be a party or to which the
business or property of the Company or any of its subsidiaries
(including subsidiaries to be acquired in the Acquisition), is or,
after giving effect to the Acquisition, may be subject; (B) no
statute, rule, regulation or order that has been enacted, adopted or
issued by any governmental agency or that has been proposed by any
governmental body; and (C) no injunction, restraining order or order
of any nature by a federal or state court or foreign court of
competent jurisdiction to which the Company or any of its subsidiaries
(including subsidiaries to be acquired in the Acquisition) is or may
be subject or to which the business, assets or property of the Company
or any of its subsidiaries (including subsidiaries to be acquired in
the Acquisition) is or may be subject, that, in the case of clauses
(A), (B) and (C) above, (1) is required to be disclosed in the
Preliminary Offering Memorandum and the Offering Memorandum and that
is not so disclosed, or (2) could reasonably be expected to result in
a Material Adverse Effect.
(xxiii) No action has been taken and no statute, rule,
regulation or order has been enacted, adopted or issued by any
governmental agency that prevents the issuance of the Securities or
the Exchange Securities or prevents or suspends the use of the
Offering Memorandum; no injunction, restraining order or order of any
nature by a federal or state court of competent jurisdiction has been
issued that prevents the issuance of the Securities or the Exchange
Securities or prevents or suspends the sale of the Securities or the
Exchange Securities in any jurisdiction referred to in Section 4(e)
hereof; and every request of any securities authority or agency of any
jurisdiction for additional information has been complied with in all
material respects.
(xxiv) The Company has delivered to the Initial Purchasers
true and correct copies of all documents and agreements related to the
Acquisition and the New Credit Facility, including all amendments,
alterations, modifications or waivers thereto and all exhibits,
ancillary agreements, side-letters and schedules thereto. Any such
documents delivered to the Initial Purchasers in draft form are in
substantially final form and constitute the most current drafts
thereof.
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(xxv) There is and, after giving effect to the Acquisition,
will be (A) no significant unfair labor practice complaint pending
against the Company or any of its subsidiaries (including subsidiaries
to be acquired in the Acquisition) nor, to the best knowledge of the
Company and the Allied Guarantors, threatened against any of them,
before the National Labor Relations Board, any state or local labor
relations board or any foreign labor relations board, and no
significant grievance or significant arbitration proceeding arising
out of or under any collective bargaining agreement is so pending
against the Company or any of its subsidiaries (including subsidiaries
to be acquired in the Acquisition) or, to the best knowledge of the
Company and the Allied Guarantors, threatened against any of them; (B)
no significant strike, labor dispute, slowdown or stoppage pending
against the Company or any of its subsidiaries (including subsidiaries
to be acquired in the Acquisition) nor, to the best knowledge of the
Company and the Allied Guarantors, threatened against the Company or
any of its subsidiaries (including subsidiaries to be acquired in the
Acquisition); and (C) to the best knowledge of the Company and the
Allied Guarantors, no union representation question existing with
respect to the employees of the Company or any of its subsidiaries
(including subsidiaries to be acquired in the Acquisition). To the
best knowledge of the Company and the Allied Guarantors, no collective
bargaining organizing activities are taking place with respect to the
Company or any of its subsidiaries (including subsidiaries to be
acquired in the Acquisition). None of the Company or any of its
subsidiaries (including subsidiaries to be acquired in the
Acquisition) has violated (A) any federal, state or local law or
foreign law relating to discrimination in hiring, promotion or pay of
employees; (B) any applicable wage or hour laws; or (C) any provision
of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the rules and regulations thereunder, except those
violations that could not reasonably be expected to have a Material
Adverse Effect.
(xxvi) None of the Company or any of its subsidiaries
(including subsidiaries to be acquired in the Acquisition) has
violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws") which could reasonably be expected to have a
Material Adverse Effect.
(xxvii) There is no alleged liability, or to the best
knowledge of the Company and the Allied Guarantors, potential
liability (including, without limitation, alleged or potential
liability or investigatory costs, cleanup costs, governmental response
costs, natural resource damages, property damages, personal injuries
or penalties) of the Company or any of its subsidiaries (including
subsidiaries to be acquired in the Acquisition) arising out of, based
on or resulting from (a) the presence or release into the environment
of any Hazardous Material (as defined) at any location, whether or not
owned by the Company or such subsidiary, as the case may be, or (b)
any violation or alleged violation of any Environmental Law, which
alleged or potential liability is required to be disclosed in the
Offering Memorandum, other than as disclosed therein, or could
reasonably be expected to have a Material Adverse Effect. The term
"Hazardous Material" means (i) any "hazardous substance" as defined by
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, (ii) any "hazardous waste" as defined by the
Resource Conservation and Recovery Act, as amended, (iii) any
petroleum or petroleum product, (iv) any polychlorinated biphenyl, and
(v) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material, waste or substance regulated under or within the
meaning of any other law relating to protection of human health or the
environment or imposing liability or standards of conduct concerning
any such chemical material, waste or substance.
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(xxviii) Each of the Company and its subsidiaries (including
subsidiaries to be acquired in the Acquisition) has and, after giving
effect to the Acquisition, will have such permits, licenses,
franchises and authorizations of governmental or regulatory
authorities ("permits"), including, without limitation, under any
applicable Environmental Laws, as are necessary to own, lease and
operate their respective properties and to conduct their businesses
except where the failure to have such permits could not reasonably be
expected to result in a Material Adverse Effect; each of the Company
and its subsidiaries (including subsidiaries to be acquired in the
Acquisition) has and, after giving effect to the Acquisition, will
have fulfilled and performed all of its obligations with respect to
such permits and no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or
results in any other material impairment of the rights of the holder
of any such permit, except where the failure to fulfil such
obligations or the occurrence of such event could not reasonably be
expected to result in a Material Adverse Effect; and, except as
described in the Offering Memorandum, such permits contain no
restrictions that are materially burdensome to the Company or such
subsidiary, as the case may be.
(xxix) Each of the Company and its subsidiaries (including
subsidiaries to be acquired in the Acquisition) has and, after giving
effect to the Acquisition, will have (A) good and marketable title to
all of the properties and assets described in the Offering Memorandum
as owned by it, free and clear of all liens, charges, encumbrances and
restrictions (except for Permitted Liens (as defined in the Indenture)
and taxes not yet payable); (B) peaceful and undisturbed possession
under all material leases to which any of them is a party as lessee
and each of which lease is valid and binding and no default exists
thereunder, except for defaults that could not reasonably be expected
to have a Material Adverse Effect; (C) all licenses, certificates,
permits, authorizations, approvals, franchises and other rights from,
and has made all declarations and filings with, all federal, state and
local authorities, all self-regulatory authorities and all courts and
other tribunals (each, an "Authorization") necessary to engage in the
business conducted by any of them in the manner described in the
Offering Memorandum and; (D) no reason to believe that any
governmental body or agency is considering limiting, suspending or
revoking any such Authorization. All such Authorizations are and,
after giving effect to the Acquisition, will be valid and in full
force and effect and each of the Company and its subsidiaries
(including subsidiaries to be acquired in the Acquisition) is in
compliance in all material respects with the terms and conditions of
all such Authorizations and with the rules and regulations of the
regulatory authorities having jurisdiction with respect thereto. All
material leases to which the Company or any of its subsidiaries
(including subsidiaries to be acquired in the Acquisition) is a party
are valid and binding and no default by the Company or such
subsidiary, as the case may be, has occurred and is continuing
thereunder and, to the best knowledge of the Company and the Allied
Guarantors, no material defaults by the landlord are existing under
any such lease, except as could not reasonably be expected to have a
Material Adverse Effect.
(xxx) Each of the Company and its subsidiaries (including
subsidiaries to be acquired in the Acquisition) owns, possesses or has
and, after giving effect to the Acquisition, will have the right to
employ all patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, software,
systems or procedures), trademarks, service marks and trade names,
inventions, computer programs, technical data and information
(collectively, the "Intellectual Property") presently employed by it
in connection with the businesses now operated by it or that are
proposed to be operated by it free and clear of and without violating
any right, claimed right,
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charge, encumbrance, pledge, security interest, restriction or lien of
any kind of any other person, and none of the Company or any of its
subsidiaries (including subsidiaries to be acquired in the
Acquisition) has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing.
The use of the Intellectual Property in connection with the business
and operations of the Company or any of its subsidiaries (including
subsidiaries to be acquired in the Acquisition) does not infringe on
the rights of any person, except as could not reasonably be expected
to have a Material Adverse Effect.
(xxxi) All material tax returns required to be filed by the
Company or any of its subsidiaries (including subsidiaries to be
acquired in the Acquisition) in all jurisdictions have been, or will
be by the Closing Date, so filed. All taxes, including withholding
taxes, penalties and interest, assessments, fees and other charges due
or claimed to be due from such entities or that are due and payable
have been paid, other than those being contested in good faith and for
which adequate reserves have been provided, those currently payable
without penalty or interest or those that have been accrued in
accordance with GAAP. To the knowledge of the Company and the Allied
Guarantors, there are no material proposed additional tax assessments
against the Company or any of its subsidiaries (including subsidiaries
to be acquired in the Acquisition), or the assets or property of the
Company or any of its subsidiaries, except those tax assessments for
which adequate reserves have been established.
(xxxii) None of the Company or any of its subsidiaries
(including subsidiaries to be acquired in the Acquisition) is and,
after giving effect to the Acquisition and the closing of the offering
of the Securities and the application of the proceeds therefrom, will
be an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act").
(xxxiii) There are no holders of securities of the Company or
any of its subsidiaries (including subsidiaries to be acquired in the
Acquisition) who, by reason of the execution by the Company and the
Guarantors of this Agreement or any other Operative Document or the
consummation by the Company and the Guarantors of the transactions
contemplated hereby and thereby, have the right to request or demand
that the Company or any of its subsidiaries (including subsidiaries to
be acquired in the Acquisition) register under the Act or analogous
foreign laws and regulations securities held by them.
(xxxiv) Each of the Company and its subsidiaries (including
subsidiaries to be acquired in the Acquisition) maintains a system of
internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with
management's general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; (C) access to assets is permitted
only in accordance with management's general or specific
authorization; and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect thereto.
(xxxv) Each of the Company and its subsidiaries (including
subsidiaries to be acquired in the Acquisition) maintains insurance
covering its properties, operations, personnel and businesses,
insuring against such losses and risks as are consistent with industry
practice to protect the Company and its subsidiaries (including
subsidiaries to be acquired in the Acquisition) and their respective
businesses. None of the Company or any of its subsidiaries (including
subsidiaries to be acquired in the Acquisition) has received notice
from any insurer or agent of
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such insurer that substantial capital improvements or other
expenditures will have to be made in order to continue such insurance.
The Offering Memorandum contains a summary of the terms of all such
insurance, which is accurate in all material respects.
(xxxvi) None of the Company or any of its subsidiaries
(including subsidiaries to be acquired in the Acquisition) has (A)
taken, directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in stabilization or
manipulation of the price of any security of the Company or any of its
subsidiaries (including subsidiaries to be acquired in the
Acquisition) to facilitate the sale or resale of the Securities or (B)
since the date of the Preliminary Offering Memorandum (1) sold, bid
for, purchased or paid any person any compensation for soliciting
purchases of the Securities or (2) paid or agreed to pay to any person
any compensation for soliciting another to purchase any other
securities of the Company or any of its subsidiaries (including
subsidiaries to be acquired in the Acquisition).
(xxxvii) No registration under the Act of the Securities is
required for the sale of the Securities to the Initial Purchasers as
contemplated hereby or for the Exempt Resales assuming (A) that the
purchasers who buy the Securities in the Exempt Resales are Eligible
Purchasers and the Exempt Resales will be made in the manner
contemplated by this Agreement and the Offering Memorandum (B) the
compliance by the Initial Purchasers with their obligations under this
Agreement and the accuracy of the Initial Purchasers' representations
regarding the absence of general solicitation in connection with the
sale of Securities to the Initial Purchasers and the Exempt Resales
contained herein. No form of general solicitation or general
advertising (as defined in Regulation D under the Act) was used by the
Company, any of the Guarantors or any of their respective
representatives (other than the Initial Purchasers, as to which the
Company and the Allied Guarantors make no representation or warranty)
in connection with the offer and sale of any of the Securities or in
connection with Exempt Resales, including, but not limited to,
articles, notices or other communications published in any newspaper,
magazine, or similar medium or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising. No securities of the
same class as any of the Securities or Exchange Securities have been
issued and sold by the Company or any of its subsidiaries (including
subsidiaries to be acquired in the Acquisition) within the six-month
period immediately prior to the date hereof.
(xxxviii) Prior to the effectiveness of any Registration
Statement, the Indenture is not required to be qualified under the
Trust Indenture Act.
(xxxix) None of the Company, the Guarantors or any of their
respective affiliates or any person acting on its or their behalf
(other than the Initial Purchasers, as to whom the Company and the
Allied Guarantors make no representation) has engaged or will engage
in any directed selling efforts within the meaning of Regulation S
with respect to any of the Securities or the Exchange Securities.
(xl) The Securities offered and sold in reliance on
Regulation S have been and will be offered and sold only in offshore
transactions; provided that the Company and the Allied Guarantors make
no representations with respect to the Initial Purchasers.
(xli) The sale of the Securities pursuant to Regulation S
is not part of a plan or scheme to evade the registration provisions
of the Act; provided that the Company and the Allied Guarantors make
no representations with respect to the Initial Purchasers.
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(xlii) The Company, the Guarantors and their respective
affiliates and all persons acting on their behalf (other than the
Initial Purchasers, as to whom the Company and the Allied Guarantors
make no representation) have complied with and will comply with the
offering restrictions requirements of Regulation S in connection with
the offering of the Securities outside the United States and, in
connection therewith, the Preliminary Offering Memorandum and the
Offering Memorandum contains or will contain the disclosure required
by Rule 902(h).
(xliii) Subsequent to the respective dates as of which
information is given in the Offering Memorandum and up to the Closing
Date, except as set forth in the Offering Memorandum, (A) none of the
Company or any of its subsidiaries (including subsidiaries to be
acquired in the Acquisition) has incurred any liabilities or
obligations, direct or contingent, which are or, after giving effect
to the Acquisition, will be material, individually or in the
aggregate, to the Company and its subsidiaries (including subsidiaries
to be acquired in the Acquisition), taken as a whole, nor entered into
any transaction not in the ordinary course of business; (B) there has
not been any change or development which, singly or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect;
and (C) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(xliv) None of the execution, delivery and performance of
this Agreement, the issuance and sale of the Securities, the
application of the proceeds from the issuance and sale of the
Securities and the consummation of the transactions contemplated
thereby as set forth in the Offering Memorandum, will violate
Regulations G, T, U or X promulgated by the Board of Governors of the
Federal Reserve System or analogous foreign laws and regulations.
(xlv) The accountants who have certified or will certify the
financial statements included or to be included as part of the
Offering Memorandum are independent certified public accountants
within the meaning of the Act. The historical financial statements,
together with related schedules and notes thereto, comply as to form
in all material respects with the requirements applicable to
registration statements on Form S-2 under the Act and present fairly
in all material respects the financial position and results of
operations of the Company and its subsidiaries, or of Ryder and its
subsidiaries, as the case may be, at the dates and for the periods
indicated. Such financial statements have been prepared in accordance
with generally accepted accounting principles applied on a consistent
basis throughout the periods presented. The pro forma financial
statements included in the Offering Memorandum have been prepared on a
basis consistent with such historical statements of the Company,
except for the pro forma adjustments specified therein, and give
effect to assumptions made on a reasonable basis and present fairly in
all material respects the historical and proposed transactions
contemplated by this Agreement and the other Operative Documents; and
such pro forma financial statements comply as to form in all material
respects with the requirements applicable to pro forma financial
statements included in registration statements on Form S-2 under the
Act, except as expressly stated therein. The other financial and
statistical information and data included in the Offering Memorandum,
historical and pro forma, are accurately presented in all material
respects and prepared on a basis consistent with the financial
statements, historical and pro forma, included in the Offering
Memorandum and the books and records of the Company and its
subsidiaries.
(xlvi) None of the Company or any of the Guarantors intends
to, nor does it believe that it will, incur debts beyond its ability
to pay such debts as they mature. The present fair saleable value of
the assets of each of the Company and the Guarantors exceeds the
amount that will be required to be paid on or in respect of its
existing debts and other liabilities (including contingent
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liabilities) as they become absolute and matured. The assets of each
of the Company and the Guarantors do not constitute unreasonably small
capital to carry out its business as conducted or as proposed to be
conducted. Upon the issuance of the Securities and consummation of
the Acquisition, the present fair saleable value of the assets of each
of the Company and the Guarantors will exceed the amount that will be
required to be paid on or in respect of its existing debts and other
liabilities (including contingent liabilities) as they become absolute
and matured. Upon the issuance of the Securities and the consummation
of the Acquisition, the assets of each of the Company and the
Guarantors will not constitute unreasonably small capital to carry out
its business as now conducted, including the capital needs of each of
the Company and the Guarantors, taking into account any anticipated
capital requirements and capital availability.
(xlvii) Except pursuant to this Agreement, there are no
contracts, agreements or understandings between the Company and its
subsidiaries (including subsidiaries to be acquired in the
Acquisition) and any other person that would give rise to a valid
claim against the Company or any of its subsidiaries (including
subsidiaries to be acquired in the Acquisition) or the Initial
Purchasers for a brokerage commission, finder's fee or like payment in
connection with the issuance, purchase and sale of the Securities.
(xlviii) There exist no conditions that would constitute a
default (or an event which with notice or the lapse of time, or both,
would constitute a default) under any of the Operative Documents.
(xlix) Each of the Company and its subsidiaries (including
subsidiaries to be acquired in the Acquisition) has complied with all
of the provisions of Florida H.B. 1771, codified as Section 517.075 of
the Florida statutes, and all regulations promulgated thereunder
relating to doing business with the Government of Cuba or with any
person or any affiliate located in Cuba.
(l) Each certificate signed by any officer of the Company or
any of the Guarantors and delivered to the Initial Purchasers or
counsel for the Initial Purchasers shall be deemed to be a
representation and warranty by the Company or such Guarantor, as the
case may be, to the Initial Purchasers as to the matters covered
thereby.
The Company and the Allied Guarantors acknowledge that the
Initial Purchasers and, for purposes of the opinions to be delivered to the
Initial Purchasers pursuant to Section 8 hereof, counsel for the Issuers and
counsel for the Initial Purchasers, will rely upon the accuracy and truth of
the foregoing representations and hereby consent to such reliance.
(b) Each of the Initial Purchasers, severally and not jointly,
represents, warrants and covenants to the Issuers and agrees that:
(i) Such Initial Purchaser is a QIB, with such knowledge and
experience in financial and business matters as are necessary in order
to evaluate the merits and risks of an investment in the Securities.
(ii) Such Initial Purchaser (A) is not acquiring the
Securities with a view to any distribution thereof that would violate
the Act or the securities laws of any state of the United States or
any other applicable jurisdiction and (B) will be reoffering and
reselling the Securities only to QIBs in reliance on the exemption
from the registration requirements of the Act provided by Rule 144A
and in offshore transactions in reliance upon Regulation S under the
Act.
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(iii) No form of general solicitation or general advertising
(within the meaning of Regulation D under the Act) has been or will be
used by such Initial Purchaser or any of its representatives in
connection with the offer and sale of any of the Securities,
including, but not limited to, articles, notices or other
communications published in any newspaper, magazine, or similar medium
or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general
advertising.
(iv) In connection with the Exempt Resales, it will solicit
offers to buy the Securities only from, and will offer to sell the
Securities only to, Eligible Purchasers. Each of the Initial
Purchasers further (A) agrees that it will offer to sell the
Securities only to, and will solicit offers to buy the Securities only
from (1) Eligible Purchasers that the Initial Purchasers reasonably
believes are QIBs and (2) Reg S Investors and (B) that, in the case of
such QIBs and such Reg S Investors, acknowledges and agrees that such
Securities will not have been registered under the Act and may be
resold, pledged or otherwise transferred only (x)(I) to a person whom
the seller reasonably believes is a QIB purchasing for its own account
or for the account of a QIB in a transaction meeting the requirements
of Rule 144A, (II) in an offshore transaction (as defined in Rule 902
under the Act) meeting the requirements of Rule 904 under the Act,
(III) in a transaction meeting the requirements of Rule 144 under the
Act or (IV) in accordance with another exemption from the registration
requirements of the Act (and based upon an opinion of counsel if the
Company so requests), (y) to the Company or any of its subsidiaries,
(z) pursuant to an effective registration statement under the Act and,
in each case, in accordance with any applicable securities laws of any
state of the United States or any other applicable jurisdiction and
(C) that the holder will, and each subsequent holder is required to,
notify any purchaser of the security evidenced thereby of the resale
restrictions set forth in (B) above.
(v) Such Initial Purchaser agrees that it has offered the
Securities and will offer and sell the Securities (A) as part of its
distribution at any time and (B) otherwise until 40 days after the
later of the commencement of the offering of the Securities pursuant
hereto and the Closing Date, only in accordance with Rule 903 of
Regulation S or another exemption from the registration requirements
of the Act. Such Initial Purchaser agrees that, during such 40-day
restricted period, it will not cause any advertisement with respect to
the Securities (including any "tombstone" advertisement") to be
published in any newspaper or periodical or posted in any public place
and will not issue any circular relating to the Securities, except
such advertisements as are permitted by and include the statements
required by Regulation S.
(vi) Such Initial Purchaser agrees that it has not offered or
sold and will not offer or sell the Series A Notes sold pursuant
hereto in reliance on Regulation S (A) as part of its distribution at
any time and (B) otherwise until 40 days after the later of the
commencement of the offering of the Series A Notes pursuant hereto and
the Closing Date, to a U.S. person (as defined in Rule 902 of the Act)
or for the account or benefit of a U.S. person (other than a
distributor (as defined in Rule 902 of the Act)).
(vii) Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Securities by it to any distributor, dealer
or person receiving a selling concession, fee or other remuneration
during the 40-day restricted period referred to in Rule 903(c)(2)
under the Act, it will send to such distributor, dealer or person
receiving a selling concession, fee or other remuneration a
confirmation or notice to substantially the following effect:
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"The Securities covered hereby have not been
registered under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), and may not be
offered and sold within the United States or to, or
for the account or benefit of, U.S. persons (i) as
part of your distribution at any time or (ii)
otherwise until 40 days after the later of the
commencement of the offering and the Closing Date,
except in either case in accordance with Regulation S
under the Securities Act (or Rule 144A in
transactions that are exempt from the registration
requirements of the Securities Act), and in
connection with any subsequent sale by you of the
Securities covered hereby in reliance on Regulation S
during the period referred to above to any
distributor, dealer or person receiving a selling
concession, fee or other remuneration, you must
deliver a notice to substantially the foregoing
effect. Terms used above have the meanings assigned
to them in Regulation S."
The Initial Purchasers understand that the Company and, for
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Section 8 hereof, counsel for the Issuers and counsel for the Initial
Purchasers will rely upon the accuracy and truth of the foregoing
representations and hereby consents to such reliance.
6. Indemnification.
(a) The Company and the Allied Guarantors, jointly and
severally, agree, and will cause the Ryder Guarantors to agree
(by executing the signature page attached hereto as Exhibit G hereto),
to indemnify and hold harmless (i) each of the Initial Purchasers,
(ii) each person, if any, who controls either of the Initial
Purchasers within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act and (iii) the respective officers,
directors, partners, employees, representatives and agents of each of
the Initial Purchasers or any controlling person to the fullest extent
lawful, from and against any and all losses, liabilities, claims,
damages and expenses whatsoever (including but not limited to
reasonable attorneys' fees and any and all expenses whatsoever
incurred in investigating, preparing or defending against any
investigation or litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in
respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum or the Offering Memorandum, or in any
supplement thereto or amendment thereof, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Issuers will not be liable
in any such case to the extent, but only to the extent, that any such
loss, liability, claim, damage or expense arises out of or is based
upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity
with information relating to either of the Initial Purchasers
furnished to the Company in writing by or on behalf of such Initial
Purchaser expressly for use therein. This indemnity agreement will be
in addition to any liability which the Issuers may otherwise have,
including under this Agreement.
(b) Each of the Initial Purchasers, severally and not
jointly, agrees to indemnify and hold harmless (i) the Issuers, (ii)
each person, if any, who controls the Issuers within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, and (iii)
the respective officers,
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directors, partners, employees, representatives and agents of the
Issuers or any controlling person, against any losses, liabilities,
claims, damages and expenses whatsoever (including but not limited to
reasonable attorneys' fees and any and all expenses whatsoever
incurred in investigating, preparing or defending against any
investigation or litigation, commenced or threatened, or any claim
whatsoever and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in
respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum or the Offering Memorandum, or in any
amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, in each case to the extent, but only to the extent,
that any such loss, liability, claim, damage or expense arises out of
or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with information relating to such Initial Purchaser
furnished to the Company in writing by or on behalf of such Initial
Purchaser expressly for use therein; provided, however, that in no
case shall either of the Initial Purchasers be liable or responsible
for any amount in excess of the discounts and commissions received by
such Initial Purchaser, as set forth on the cover page of the Offering
Memorandum. This indemnity will be in addition to any liability which
the Initial Purchasers may otherwise have, including under this
Agreement.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection,
notify each party against whom indemnification is to be sought in
writing of the commencement thereof (but the failure so to notify an
indemnifying party shall not relieve it from any liability which it
may have under this Section 6 except to the extent that it has been
prejudiced in any material respect by such failure or from any
liability which it may otherwise have). In case any such action is
brought against any indemnified party, and it notifies an indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent it may elect by
written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume
the defense thereof with counsel reasonably satisfactory to such
indemnified party. Notwithstanding the foregoing, the indemnified
party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless
(i) the employment of such counsel shall have been authorized in
writing by the indemnifying parties in connection with the defense of
such action, (ii) the indemnifying parties shall not have employed
counsel to take charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii)
such indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from
or additional to those available to one or all of the indemnifying
parties (in which case the indemnifying party or parties shall not
have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees and
expenses of counsel shall be borne by the indemnifying parties;
provided, however, that the indemnifying party under subsection (a) or
(b) above shall only be liable for the legal expenses of one counsel
(in addition to any local counsel) for all indemnified parties in each
jurisdiction in which any claim or action is brought. Anything in
this subsection to the contrary notwithstanding, an
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indemnifying party shall not be liable for any settlement of any claim
or action effected without its prior written consent, provided that
such consent was not unreasonably withheld.
7. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 6 is for any
reason held to be unavailable from the Issuers or is insufficient to hold
harmless a party indemnified thereunder, the Issuers, on the one hand, and each
Initial Purchaser, on the other hand, shall contribute to the aggregate losses,
claims, damages, liabilities and expenses of the nature contemplated by such
indemnification provision (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claims asserted, but after deducting in the
case of losses, claims, damages, liabilities and expenses suffered by the
Issuers, any contribution received by the Issuers from persons, other than the
Initial Purchasers, who may also be liable for contribution, including persons
who control the Issuers within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act) to which the Company, the Guarantors and such
Initial Purchaser may be subject, in such proportion as is appropriate to
reflect the relative benefits received by the Issuers, on one hand, and such
Initial Purchaser, on the other hand, from the offering of the Series A Notes
or, if such allocation is not permitted by applicable law or indemnification is
not available as a result of the indemnifying party not having received notice
as provided in Section 6, in such proportion as is appropriate to reflect not
only the relative benefits referred to above but also the relative fault of the
Issuers, on one hand, and such Initial Purchaser, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Issuers, on
one hand, and each Initial Purchaser, on the other hand, shall be deemed to be
in the same proportion as (i) the total proceeds from the offering of Series A
Notes (net of discounts but before deducting expenses) received by the Issuers
and (ii) the discounts and commissions received by such Initial Purchaser,
respectively, in each case as set forth in the table on the cover page of the
Offering Memorandum. The relative fault of the Issuers, on one hand, and of
each Initial Purchaser, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Guarantors or such Initial
Purchaser and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company,
the Guarantors and the Initial Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to above. Notwithstanding the
provisions of this Section 7, (i) in no case shall either of the Initial
Purchasers be required to contribute any amount in excess of the amount by
which the discounts and commissions applicable to the Series A Notes purchased
by such Initial Purchaser pursuant to this Agreement exceeds the amount of any
damages which such Initial Purchaser has otherwise been required to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission and (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 7, (A) each person, if any, who controls either of the Initial
Purchasers within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act and (B) the respective officers, directors, partners, employees,
representatives and agents of each of the Initial Purchasers or any controlling
person shall have the same rights to contribution as such Initial Purchaser,
and (A) each person, if any, who controls the Issuers within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act and (B) the
respective officers, directors, partners, employees, representatives and agents
of the Issuers shall have the same rights to contribution as the Issuers,
subject in each case to clauses (i) and (ii) of this Section 7. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a
claim
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for contribution may be made against another party or parties under this
Section 7, notify such party or parties from whom contribution may be sought,
but the failure to so notify such party or parties shall not relieve the party
or parties from whom contribution may be sought from any obligation it or they
may have under this Section 7 or otherwise. No party shall be liable for
contribution with respect to any action or claim settled without its prior
written consent, provided that such written consent was not unreasonably
withheld.
8. Conditions of Initial Purchasers' Obligations. The
obligations of the Initial Purchasers to purchase and pay for the Securities,
as provided herein, shall be subject to the satisfaction of the following
conditions:
(a) All of the representations and warranties of the Company
and the Allied Guarantors contained in this Agreement shall be true
and correct on the date hereof and on the Closing Date (after giving
effect to the Acquisition) with the same force and effect as if made
on and as of the date hereof and the Closing Date, respectively. Each
of the Company and the Allied Guarantors shall have performed or
complied with all of the agreements herein contained and required to
be performed or complied with by it at or prior to the Closing Date.
(b) The Offering Memorandum shall have been printed and
copies distributed to the Initial Purchasers not later than 10:00
a.m., New York City time, on the day following the date of this
Agreement or at such later date and time as to which the Initial
Purchasers may agree, and no stop order suspending the qualification
or exemption from qualification of the Securities in any jurisdiction
referred to in Section 4(e) shall have been issued and no proceeding
for that purpose shall have been commenced or shall be pending or
threatened.
(c) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency which would, as of the Closing Date, prevent the
issuance of the Securities or the consummation of the Acquisition; no
action, suit or proceeding shall have been commenced and be pending
against or affecting or, to the best knowledge of the Company and the
Allied Guarantors, threatened against, the Company or any of its
subsidiaries (including subsidiaries to be acquired in the
Acquisition) before any court or arbitrator or any governmental body,
agency or official that, if adversely determined, could reasonably be
expected to result in a Material Adverse Effect; and no stop order
shall have been issued preventing the use of the Offering Memorandum,
or any amendment or supplement thereto, or which could reasonably be
expected to have a Material Adverse Effect.
(d) Since the dates as of which information is given in the
Offering Memorandum, (i) there shall not have been any material
adverse change, or any development that is reasonably likely to result
in a material adverse change, in the capital stock or the long-term
debt, or material increase in the short-term debt, of the Company or
any of its subsidiaries (including subsidiaries to be acquired in the
Acquisition) from that set forth in the Offering Memorandum, (ii) no
dividend or distribution of any kind shall have been declared, paid or
made by the Company or any of its subsidiaries (including subsidiaries
to be acquired in the Acquisition) on any class of its capital stock
and (iii) none of the Company or any of its subsidiaries (including
subsidiaries to be acquired in the Acquisition) shall have incurred
any liabilities or obligations, direct or contingent, that are or,
after giving effect to the Acquisition, will be material, individually
or in the aggregate, to the Company and its subsidiaries (including
subsidiaries to be acquired in the Acquisition), taken as a whole, and
that are required to be disclosed on a balance sheet or notes thereto
in accordance with generally accepted accounting principles and
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are not disclosed on the latest balance sheet or notes thereto
included in the Offering Memorandum. Since the date hereof and since
the dates as of which information is given in the Offering Memorandum,
there shall not have occurred any material adverse change in the
business, prospects, financial condition or results of operation of
the Company and its subsidiaries (including subsidiaries to be
acquired in the Acquisition), taken as a whole.
(e) The Initial Purchasers shall have received certificates,
dated the Closing Date, signed on behalf of the Issuers, in form and
substance satisfactory to the Initial Purchasers, confirming, as of
the Closing Date, the matters set forth in paragraphs (a), (b), (c)
and (d) of this Section 8 and that, as of the Closing Date, the
obligations of the Company and the Allied Guarantors to be performed
hereunder on or prior thereto have been duly performed.
(f) The Initial Purchasers shall have received on the Closing
Date an opinion, dated the Closing Date, in form and substance
satisfactory to the Initial Purchasers and counsel for the Initial
Purchasers, of Xxxxxxxx Xxxxxxx LLP (or local counsel or bank counsel,
as appropriate), counsel for the Issuers, substantially in the form of
Exhibit E hereto.
(g) At the time this Agreement is executed and at the Closing
Date, the Initial Purchasers shall have received from Xxxxxx Xxxxxxxx,
LLP and KPMG Peat Marwick LLP, independent public accountants, dated
as of the date of this Agreement and as of the Closing Date, customary
comfort letters addressed to the Initial Purchasers and in form and
substance satisfactory to the Initial Purchasers and counsel for the
Initial Purchasers with respect to the financial statements and
certain financial information of the Company and its subsidiaries, and
of Ryder and its subsidiaries, contained in the Offering Memorandum
and/or incorporated therein by reference.
(h) The Initial Purchasers shall have received an opinion,
dated the Closing Date, in form and substance reasonably satisfactory
to the Initial Purchasers, of Xxxxxx & Xxxxxxx, counsel for the
Initial Purchasers, covering such matters as are customarily covered
in such opinions.
(i) The Initial Purchasers shall have received a certificate
of the Company, dated the Closing Date, in form and substance
satisfactory to the Initial Purchasers and counsel for the Initial
Purchasers, as to the solvency of the Company following consummation
of the Acquisition.
(j) Xxxxxx & Xxxxxxx shall have been furnished with such
documents, in addition to those set forth above, as they may
reasonably require for the purpose of enabling them to review or pass
upon the matters referred to in this Section 8 and in order to
evidence the accuracy, completeness or satisfaction in all material
respects of any of the representations, warranties or conditions
herein contained.
(k) Prior to the Closing Date, the Issuers shall have
furnished to the Initial Purchasers such further information,
certificates and documents as the Initial Purchasers may reasonably
request.
(l) The Issuers and the Trustee shall have entered into the
Indenture and the Initial Purchasers shall have received counterparts,
conformed as executed, thereof.
(m) The Issuers shall have entered into the Registration
Rights Agreement and the Initial Purchasers shall have received
counterparts, conformed as executed, thereof.
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(n) The Acquisition and the New Credit Facility shall be
consummated prior to, or simultaneously with, the Closing of the
Offering on substantially the terms described in the Offering
Memorandum and the Initial Purchasers shall have received
counterparts, conformed as executed, of the Acquisition Agreement and
the New Credit Facility and such other documentation as they deem
necessary to evidence the consummation thereof.
(o) All of the opinions to be delivered by the Company and it
subsidiaries (including subsidiaries to be acquired in the
Acquisition) pursuant to the New Credit Facility and the Acquisition
Agreement shall be addressed and delivered to the Initial Purchasers.
(p) There shall not have been any announcement by any
"nationally recognized statistical rating organization," as defined
for purposes of Rule 463(g) under the Securities Act, that (i) it is
downgrading its rating assigned to any class of securities of the
Company or (ii) it is reviewing its ratings assigned to any class of
securities of the Company with a view to possible downgrading, or with
negative implications, or direction not determined.
(q) The Securities shall have been approved for trading on
PORTAL.
All opinions, certificates, letters and other documents
required by this Section 8 to be delivered by the Company and its subsidiaries
(including subsidiaries to be acquired in the Acquisition) will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to the Initial Purchasers. The Company it subsidiaries
(including subsidiaries to be acquired in the Acquisition) shall furnish the
Initial Purchasers with such conformed copies of such opinions, certificates,
letters and other documents as they shall reasonably request.
9. Initial Purchasers' Information. The Company and the Allied
Guarantors acknowledge that the statements with respect to the offering of the
Securities set forth in the last paragraph of the cover page and the third
paragraph and the third sentence of the fourth paragraph under the caption
"Plan of Distribution" in the Offering Memorandum constitute the only
information relating to any of the Initial Purchasers furnished to the Company
in writing by or on behalf of any of the Initial Purchasers expressly for use
in the Offering Memorandum.
10. Survival of Representations and Agreements. All
representations and warranties, covenants and agreements of the Initial
Purchasers, the Company and the Allied Guarantors contained in this Agreement,
including the agreements contained in Sections 4(f) and 11(d), the indemnity
agreements contained in Section 6 and the contribution agreements contained in
Section 7, shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of either of the Initial Purchasers, any
controlling person thereof, or by or on behalf of the Company and the Allied
Guarantors or any controlling person thereof, and shall survive delivery of and
payment for the Securities to and by the Initial Purchasers. The
representations contained in Section 5 and the agreements contained in Sections
4(f), 6, 7 and 11(d) shall survive the termination of this Agreement, including
any termination pursuant to Section 11.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon execution and
delivery of a counterpart hereof by each of the parties hereto.
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(b) The Initial Purchasers shall have the right to terminate
this Agreement at any time prior to the Closing Date by notice to the
Company from the Initial Purchasers, without liability (other than
with respect to Sections 6 and 7) on the Initial Purchasers' part to
the Company or any of the Guarantors if, on or prior to such date, (i)
the Company or any of the Guarantors shall have failed, refused or
been unable to perform in any material respect any agreement on their
part to be performed hereunder, (ii) any other condition to the
obligations of the Initial Purchasers hereunder as provided in Section
8 is not fulfilled when and as required in any material respect, (iii)
in the reasonable judgment of the Initial Purchasers, any material
adverse change shall have occurred since the respective dates as of
which information is given in the Offering Memorandum in the condition
(financial or otherwise), business, properties, assets, liabilities,
prospects, net worth, results of operations or cash flows of the
Company and its subsidiaries, taken as a whole, other than as set
forth in the Offering Memorandum, or (iv)(A) any domestic or
international event or act or occurrence has materially disrupted, or
in the opinion of the Initial Purchasers will in the immediate future
materially disrupt, the market for the Company's securities or for
securities in general; or (B) trading in securities generally on the
New York or American Stock Exchange shall have been suspended or
materially limited, or minimum or maximum prices for trading shall
have been established, or maximum ranges for prices for securities
shall have been required, on such exchange, or by such exchange or
other regulatory body or governmental authority having jurisdiction;
or (C) a banking moratorium shall have been declared by federal or
state authorities, or a moratorium in foreign exchange trading by
major international banks or persons shall have been declared; or (D)
there is an outbreak or escalation of armed hostilities involving the
United States on or after the date hereof, or if there has been a
declaration by the United States of a national emergency or war, the
effect of which shall be, in the Initial Purchasers' judgment, to make
it inadvisable or impracticable to proceed with the offering or
delivery of the Securities on the terms and in the manner contemplated
in the Offering Memorandum; or (E) there shall have been such a
material adverse change in general economic, political or financial
conditions or if the effect of international conditions on the
financial markets in the United States shall be such as, in the
Initial Purchasers' judgment, makes it inadvisable or impracticable to
proceed with the delivery of the Securities as contemplated hereby.
(c) Any notice of termination pursuant to this Section 11
shall be by telephone or telephonic facsimile and, in either case,
confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any of
the provisions hereof (otherwise than pursuant to clause (iv) of
Section 11(b), in which case each party will be responsible for its
own expenses), or if the sale of the Securities provided for herein is
not consummated because any condition to the obligations of the
Initial Purchasers set forth herein is not satisfied or because of any
refusal, inability or failure on the part of the Company or any of the
Guarantors to perform any agreement herein or comply with any
provision hereof, the Issuers shall reimburse the Initial Purchasers
for all out-of-pocket expenses (including the reasonable fees and
expenses of the Initial Purchasers' counsel), incurred by the Initial
Purchasers in connection herewith.
12. Notice. All communications hereunder, except as may be
otherwise specifically provided herein, shall be in writing and, if sent to the
Initial Purchasers shall be mailed, delivered, telecopied and confirmed in
writing or sent by a nationally recognized overnight courier service
guaranteeing delivery on the next business day to Bear, Xxxxxxx & Co. Inc., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Finance Department,
telecopy number: (000) 000-0000, with a copy to Xxxxxx &
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Xxxxxxx, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxx X. Xxxxxxxxxxx, telecopy number: (000) 000-0000; and if sent to the Company
or any of the Guarantors, shall be mailed, delivered, telecopied and confirmed
in writing or sent by a nationally recognized overnight courier service
guaranteeing delivery on the next business day to Allied Holdings, Inc., 000
Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X.
Xxxxx, telecopy number: (000) 000-0000, with a copy to Xxxxxxxx Xxxxxxx LLP,
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000-0000, Attention: Xxxxxx X.
Xxxxx, telecopy number: (000) 000-0000.
13. Parties. This Agreement shall inure solely to the benefit of,
and shall be binding upon, the Initial Purchasers, the Company and the Allied
Guarantors and the controlling persons and agents referred to in Sections 6 and
7, and their respective successors and assigns, and no other person shall have
or be construed to have any legal or equitable right, remedy or claim under or
in respect of or by virtue of this Agreement or any provision herein contained.
The term "successors and assigns" shall not include a purchaser, in its
capacity as such, of Securities from the Initial Purchasers.
14. CONSTRUCTION. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. TIME IS OF THE ESSENCE IN
THIS AGREEMENT.
15. Captions. The captions included in this Agreement are
included solely for convenience of reference and are not to be considered a
part of this Agreement.
16. Counterparts. This Agreement may be executed in various
counterparts which together shall constitute one and the same instrument.
[Signature pages follow]
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If the foregoing correctly sets forth the understanding among
the Initial Purchasers, the Company and the Allied Guarantors please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among us.
Very truly yours,
ALLIED HOLDINGS, INC.
By:
---------------------------------------------
Name:
Title:
ALLIED AUTOMOTIVE GROUP, INC.
By:
---------------------------------------------
Name:
Title:
ALLIED INDUSTRIES INCORPORATED
By:
---------------------------------------------
Name:
Title:
HAUL RISK MANAGEMENT SERVICES, INC.
By:
---------------------------------------------
Name:
Title:
LINK INFORMATION SYSTEMS, INC.
By:
---------------------------------------------
Name:
Title:
29
ALLIED SOUTHWOODS, INC.
By:
---------------------------------------------
Name:
Title:
AXIS GROUP, INC.
By:
---------------------------------------------
Name:
Title:
ALLIED SYSTEMS, LTD. (L.P.)
BY: ALLIED AUTOMOTIVE GROUP, INC.,
as general partner
By:
---------------------------------------------
Name:
Title:
ALLIED, INC.
By:
---------------------------------------------
Name:
Title:
INTER MOBILE, INC.
By:
---------------------------------------------
Name:
Title:
LEGION TRANSPORTATION, INC.
By:
---------------------------------------------
Name:
Title:
30
INNOVATIVE CAR CARRIERS, INC.
By:
---------------------------------------------
Name:
Title:
AUTOMOTIVE TRANSPORT SERVICES, INC.
By:
---------------------------------------------
Name:
Title:
AUTO HAULAWAY INC.
By:
---------------------------------------------
Name:
Title:
AUTO HAULAWAY RELEASING SERVICES (1981) LIMITED
By:
---------------------------------------------
Name:
Title:
AXIS INTERNATIONAL, INC.
By:
---------------------------------------------
Name:
Title:
AXIS TRUCK LEASING, INC.
By:
---------------------------------------------
Name:
Title:
00
XXXX XXXXX XXXXXXX, INC.
By:
---------------------------------------------
Name:
Title:
DECATUR DRIVER EXCHANGE COMPANY, INC.
By:
---------------------------------------------
Name:
Title:
CLAIREMONT DRIVER EXCHANGE COMPANY, INC.
By:
---------------------------------------------
Name:
Title:
KAR-TAINER INTERNATIONAL, INC.
By:
---------------------------------------------
Name:
Title:
A H ACQUISITION CORP.
By:
---------------------------------------------
Name:
Title:
CANADIAN ACQUISITION CORP.
By:
---------------------------------------------
Name:
Title:
32
AXIS NATIONAL INCORPORATED
By:
---------------------------------------------
Name:
Title:
Accepted and agreed to as of
the date first above written:
BEAR, XXXXXXX & CO. INC.
BT ALEX. XXXXX INCORPORATED
NATIONSBANC CAPITAL MARKETS, INC.
BY: BEAR XXXXXXX & CO., INC.
By: /s/ Xxxxx X. Xxxx
---------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Managing Director
33
Ryder Guarantor Signature Page
We hereby agree to be bound by the terms of the Purchase Agreement,
dated as of September 19, 1997, by and among Allied Holdings, Inc., the
Guarantors named on the signature page thereto and Bear, Xxxxxxx & Co., Inc.,
BT Alex. Xxxxx Incorporated and NationsBanc Capital Markets, Inc. and to
cooperate with Allied Holdings, Inc. and Guarantors in complying with their
obligations thereunder.
Dated: September 30, 1997
RC MANAGEMENT CORP.
By:
-----------------------------------
Name:
Title:
RYDER AUTOMOTIVE CARRIER SERVICES, INC.
By:
-----------------------------------
Name:
Title:
RYDER AUTOMOTIVE ACQUISITION, LLC
BY: CANADIAN ACQUISITION CORP.,
AS MEMBER
By:
-----------------------------------
Name:
Title:
XXX XXXXX TRANSPORT INC.
By:
-----------------------------------
Name:
Title:
34
RYDER AUTOMOTIVE OPERATIONS, INC.
By:
-----------------------------------
Name:
Title:
RYDER FREIGHT BROKER, INC.
By:
-----------------------------------
Name:
Title:
QAT, INC.
By:
-----------------------------------
Name:
Title:
OSHCO, INC.
By:
-----------------------------------
Name:
Title:
TERMINAL SERVICE CO.
By:
-----------------------------------
Name:
Title:
X.X. XXXXXXX DRIVEAWAY CO., INC.
By:
-----------------------------------
Name:
Title:
35
RMX, INC.
By:
-----------------------------------
Name:
Title:
TRANSPORT SUPPORT, INC.
By:
-----------------------------------
Name:
Title:
COMMERICAL CARRIERS, INC.
By:
-----------------------------------
Name:
Title:
B&C, INC.
By:
-----------------------------------
Name:
Title:
36
SCHEDULE I
Principal Amount
Initial Purchaser of Securities
----------------- -------------------
Bear, Xxxxxxx & Co. Inc. . . . . . . . . . . . . . . . . . . . $105,000,000
BT Alex. Xxxxx Incorporated . . . . . . . . . . . . . . . . . . $ 30,000,000
NationsBanc Capital Markets, Inc. . . . . . . . . . . . . . . . $ 15,000,000
------------
Total . . . . . . . . . . . . . . . . . . . . . . . . $150,000,000
============
37
EXHIBIT A
List of Allied Guarantors
1. Allied Automotive Group, Inc.
2. Allied Industries Incorporated
3. Haul Risk Management Services, Inc.
4. Link Information Systems, Inc.
5. Allied Southwoods, Inc.
6. Axis Group, Inc.
7. Allied Systems, Ltd. (L.P.)
8. Allied, Inc.
9. Inter Mobile, Inc.
10. Legion Transportation, Inc.
11. Innovative Car Carriers, Inc.
12. Automotive Transport Services, Inc.
13. Auto Haulaway Inc.
14. Auto Haulaway Releasing Services (1981) Limited
15. Axis International, Inc.
16. Axis Truck Leasing, Inc.
17. Axis North America, Inc.
18. Decatur Driver Exchange Company, Inc.
19. Clairemont Driver Exchange Company, Inc.
20. Kar-Tainer International, Inc.
21. A H Acquisition Corp.
22. Canadian Acquisition Corp.
23. Axis National Incorporated
A-1
38
EXHIBIT B
List of Ryder Guarantors
1. RC Management Corp.
2. Ryder Automotive Carrier Services, Inc.
3. Ryder Automotive Acquisition, LLC
4. XXX Xxxxx Transport Inc.
5. Ryder Automotive Operations, Inc.
6. Ryder Freight Broker, Inc.
7. QAT, Inc.
8. OSHCO, Inc.
9. Terminal Service Co.
10. X.X. Xxxxxxx Driveaway Co., Inc.
11. RMX, Inc.
12. Transport Support, Inc.
13. Commercial Carriers, Inc.
14. B&C, Inc.
B-1
39
EXHIBIT C
List of Allied Foreign Subsidiaries
1. AH Industries Inc.
2. Haul Insurance Limited
3. Kar-Tainer International Limited
4. Kar-Tainer International (Pty) Limited
C-1
40
EXHIBIT D
List of Ryder Foreign Subsidiaries
None
D-1
41
EXHIBIT E
Form of Opinion of Xxxxxxxx Xxxxxxx LLP
1. Each of the Issuers (a) is duly incorporated and is
validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation, (b) has all requisite corporate
power and authority to carry on its business as it is currently being
conducted and as described in the Offering Memorandum and to own,
lease and operate its properties, and (c) is duly qualified and in
good standing as a foreign corporation, authorized to do business in
each jurisdiction in which the nature of its business or its ownership
or leasing of property requires such qualification, except where the
failure to be so qualified could not reasonably be expected to have a
Material Adverse Effect.
2. Each of the Issuers has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement and each of the other Operative Documents to which it is a
party and to consummate the transactions contemplated hereby and
thereby, including, without limitation, the corporate power and
authority to issue, sell and deliver the Notes and to issue and
deliver the Guarantees as provided herein.
3. All of the outstanding capital stock of each subsidiary of
the Company is owned by the Company, free and clear of any security
interest, claim, lien, limitation on voting rights or encumbrance; and
all such securities have been duly authorized, validly issued, and are
fully paid and nonassessable and were not issued in violation of any
preemptive or similar rights.
4. This Agreement has been duly and validly authorized,
executed and delivered by each of the Company and the Allied
Guarantors.
5. The Registration Rights Agreement has been duly and
validly authorized, executed and delivered by each of the Issuers, and
is the valid and binding obligation of each of the Issuers,
enforceable against each of them in accordance with its terms, except
to the extent that (a) enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity); and
(b) the enforceability of indemnification and contribution provisions
may be limited by Federal and state securities laws and the policies
underlying such laws.
6. The Indenture has been duly and validly authorized,
executed and delivered by each of the Issuers, and is the valid and
binding obligation of each of the Issuers, enforceable against each of
them in accordance with its terms (assuming the due authorization,
execution and delivery of the Indenture by the Trustee), except to the
extent that (a) enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity); and (b) the waiver
contained in Section 4.06 of the Indenture may be deemed
unenforceable.
7. The New Credit Facility has been duly and validly
authorized, executed and delivered by each of the Company and its
subsidiaries party thereto, and is the valid and binding obligation of
each of the Company and such subsidiaries, enforceable against each of
them in accordance with its terms, except to the extent that (a)
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating
E-1
42
to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a proceeding at
law or in equity) and (b) the waiver contained in Section 25 of the New
Credit Facility may be deemed unenforceable.
8. The Acquisition Agreement has been duly and validly
authorized, executed and delivered by the Company, A H Acquisition
Corp., Canadian Acquisition Corp. and Axis North America, Inc., and is
the valid and binding obligation of the Company, A H Acquisition Corp.,
Canadian Acquisition Corp. and Axis North America, Inc., enforceable
against its in accordance with its terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
9. The Series A Notes have been duly and validly authorized
and executed by the Company for issuance and sale to the Initial
Purchasers pursuant to this Agreement, and, when authenticated in
accordance with the terms of the Indenture and delivered against
payment therefor in accordance with the terms hereof and thereof, the
Series A Notes will be the valid and binding obligations of the
Company, enforceable against it in accordance with their terms and
entitled to the benefits of the Indenture, except to the extent that
(a) enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity); and (b) the waiver
contained in Section 4.06 of the Indenture may be deemed unenforceable.
The Offering Memorandum contains a summary of the terms of the Series A
Notes, which is accurate in all material respects.
10. The Series B Notes have been duly and validly authorized
for issuance by the Company, and, when issued and authenticated in
accordance with the terms of the Exchange Offer and the Indenture, the
Series B Notes will be the valid and binding obligations of the
Company, enforceable against it in accordance with their terms and
entitled to the benefits of the Indenture, except to the extent that
(a) enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity); and (b) the waiver
contained in Section 4.06 of the Indenture may be deemed unenforceable.
The Offering Memorandum contains a summary of the terms of the Series B
Notes, which is accurate in all material respects.
11. The Guarantees have been duly and validly authorized and
executed by each of the Guarantors, and when the Series A Notes have
been issued and authenticated in accordance with the terms of the
Indenture and delivered against payment therefor in accordance with the
terms hereof and thereof, the Guarantees will be the valid and binding
obligations of each of the Guarantors, enforceable against each of them
in accordance with their terms and entitled to the benefits of the
Indenture, except to the extent that (a) enforcement thereof may be
limited by (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in
equity); and (b) the waiver contained in Section 4.06 of the Indenture
may be deemed unenforceable. The Offering Memorandum contains a summary
of the terms of the Guarantees, which is accurate in all material
respects.
X-0
00
00. The Series B Guarantees have been duly and validly
authorized by each of the Guarantors, and when executed and delivered
in accordance with the terms of the Indenture, and when the Series B
Notes have been issued and authenticated in accordance with the terms
of the Exchange Offer and the Indenture, the Series B Guarantees will
be the valid and binding obligations of each of the Guarantors,
enforceable against each of them in accordance with their terms and
entitled to the benefits of the Indenture, except to the extent that
(a) enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity); and (b) the waiver
contained in Section 4.06 of the Indenture may be deemed unenforceable.
The Offering Memorandum contains a summary of the terms of the Series B
Guarantees which is accurate in all material respects.
13. The Offering Memorandum contains a summary of the terms of
each of the Indenture, the Registration Rights Agreement, the New
Credit Facility and the Acquisition Agreement which, in each case, is
accurate in all material respects. The statements under the captions
"Description of Notes," "Notice to Investors" and "Plan of
Distribution" in the Offering Memorandum, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, present fairly in all material respects, such
legal matters, documents and proceedings.
14. To the best of such counsel's knowledge, neither the
Company nor any of its subsidiaries is (a) in violation of its charter
or bylaws or (b) in default in the performance of any bond, debenture,
note, indenture, mortgage, deed of trust or other agreement or
instrument to which it is a party or by which it is bound or to which
any of its properties is subject, which, in the case of clause (b),
singly or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
15. No registration under the Act of the Securities is
required for the sale of the Securities to the Initial Purchasers as
contemplated hereby or for the Exempt Resales assuming (a) that each of
the Initial Purchasers is a QIB, (b) that the purchasers who buy the
Securities in the Exempt Resales are either QIBs or Reg S Investors,
(c) the accuracy of the Initial Purchasers' representations regarding
the absence of general solicitation in connection with the sale of
Securities to the Initial Purchasers and the Exempt Resales contained
herein and (d) the accuracy of the Company's and the Allied Guarantors'
representations in Sections 5(a)(viii) and (xxxvi) (other than with
respect to the first sentence).
16. Each of the Preliminary Offering Memorandum and the
Offering Memorandum, as of its date, and each amendment or supplement
thereto, as of its date (except for the financial statements and
related notes, the financial statement schedules and other financial
and statistical data included therein or omitted therefrom, as to which
no opinion need be expressed), contains the information specified in,
and meets the requirements of, Rule 144A(d)(4) under the Act.
17. When the Securities are issued and delivered pursuant to
this Agreement, no Securities will be of the same class (within the
meaning of Rule 144A under the Act) as securities of the Company or of
any of the Guarantors that are listed on a national securities exchange
registered under Section 6 of the Exchange Act or that are quoted in a
United States automated inter-dealer quotation system.
X-0
00
00. Xxxx of (a) the execution, delivery or performance by the
Company or any of the Guarantors of this Agreement or any of the other
Operative Documents to which it is a party, (b) the consummation of the
Acquisition, (c) the issuance and sale of the Notes and the issuance of
the Guarantees and (d) consummation by the Company of the transactions
described in the Offering Memorandum under the caption "Use of
Proceeds," violates, conflicts with or constitutes a breach of any of
the terms or provisions of, or a default under (or an event that with
notice or the lapse of time, or both, would constitute a default), or
requires consent under, or results in the imposition of a lien or
encumbrance on any properties of the Company or any of its
subsidiaries, or an acceleration of any indebtedness of the Company or
any of its subsidiaries pursuant to, (i) the charter or bylaws of the
Company or any of its subsidiaries, (ii) any bond, debenture, note,
indenture, mortgage, deed of trust or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which any
of them or their property is or may be bound that has been filed or
incorporated by reference as an exhibit to any filing by the Company or
any of its subsidiaries with the Commission, (iii) any statute, rule or
regulation applicable to the Company or any its subsidiaries or any of
their assets or properties or (iv) to the best of such counsel's
knowledge, any judgment, order or decree of any court or governmental
agency or authority having jurisdiction over the Company or any of its
subsidiaries or any of their assets or properties. Assuming compliance
with applicable state securities and Blue Sky laws, as to which such
counsel need express no opinion, and except for the filing of a
registration statement under the Act and qualification of the Indenture
under the Trust Indenture Act, or in connection with the Registration
Rights Agreement, no consent, approval, authorization or order of, or
filing, registration, qualification, license or permit of or with, (a)
any court or governmental agency, body or administrative agency or (b)
any other person is required for (i) the execution, delivery and
performance by the Company or any of the Guarantors of this Agreement
or any of the other Operative Documents to which it is a party, (ii)
the Acquisition or (iii) the issuance and sale of the Notes and the
issuance of the Guarantees and the transactions contemplated hereby and
thereby, except such as have been obtained and made or have been
disclosed in the Offering Memorandum.
19. To the best of such counsel's knowledge, there is (a) no
action, suit, investigation or proceeding before or by any court,
arbitrator or governmental agency, body or official, domestic or
foreign, now pending or threatened or contemplated to which the Company
or any of its subsidiaries is or may be a party or to which the
business or property of the Company or any of its subsidiaries, is or
may be subject, (b) no statute, rule, regulation or order that has been
enacted, adopted or issued by any governmental agency or that has been
proposed by any governmental body and (c) no injunction, restraining
order or order of any nature by a federal or state court or foreign
court of competent jurisdiction to which the Company or any of its
subsidiaries is or may be subject or to which the business, assets, or
property of the Company or any of its subsidiaries is or may be
subject, that, in the case of clauses (a), (b) and (c) above, is
required to be disclosed in the Preliminary Offering Memorandum and the
Offering Memorandum and that is not so disclosed.
20. None of the Company or any of its subsidiaries is an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act.
21. To the best of such counsel's knowledge, there are no
holders of securities of the Company or any of its subsidiaries who, by
reason of the execution by the Company and the Guarantors of this
Agreement or any other Operative Document or the consummation by the
Company and the Guarantors of the transactions contemplated hereby and
thereby, have the right
E-4
45
to request or demand that the Company or any of its subsidiaries
register under the Act or analogous foreign laws and regulations
securities held by them.
22. To the best of such counsel's knowledge, there are not
currently any outstanding subscriptions, rights, warrants, calls,
commitments of sale or options to acquire, or instruments convertible
into or exchangeable for, any capital stock or other equity interest of
any subsidiary of the Company.
23. To the best of such counsel's knowledge, no stop order
preventing the use of the Preliminary Offering Memorandum or the
Offering Memorandum, or any amendment or supplement thereto, or any
order asserting that any of the transactions contemplated by this
Agreement are subject to the registration requirements of the Act, has
been issued.
24. The documents incorporated by reference in the Offering
Memorandum, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Exchange Act.
25. The Indenture complies as to form in all material respects
with the requirements of the Trust Indenture Act and the rules and
regulations of the Commission applicable to an indenture which is
qualified thereunder. Prior to the Exchange Offer or the effectiveness
of the Shelf Registration Statement, the Indenture is not required to
be qualified under the Trust Indenture Act.
In addition, such counsel shall state that it has participated in
conferences with officers and other representatives of the Company, Ryder
System, Inc. and the Guarantors, representatives of the independent certified
public accountants of the Company, Ryder System, Inc. and the Guarantors and the
Initial Purchasers and their representatives at which the contents of the
Preliminary Offering Memorandum and the Offering Memorandum and related matters
were discussed and, although it has not undertaken to investigate or verify
independently, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Preliminary Offering
Memorandum or the Offering Memorandum (except as indicated above), on the basis
of the foregoing (relying as to materiality to the extent such counsel deems
appropriate upon facts provided to such counsel by officers or other
representatives of the Company and the Ryder Guarantors and without independent
verification of such facts), no facts have come to its attention which led it to
believe that the Preliminary Offering Memorandum or the Offering Memorandum (in
each case, including the documents incorporated by reference therein), as of its
date or the Closing Date, contained an untrue statement of a material fact or
omitted to state any fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (except as to financial statements and related notes, the
financial statement schedules and other financial and statistical data included
therein).
X-0
00
XXXXXXX X
Form of Ryder Guarantor Signature Page
We hereby agree to be bound by the terms of the Purchase Agreement,
dated as of September 19, 1997, by and among Allied Holdings, Inc., the
Guarantors named on the signature page thereto and Bear, Xxxxxxx & Co., Inc., BT
Alex. Xxxxx Incorporated and NationsBanc Capital Markets, Inc. and to cooperate
with Allied Holdings, Inc. and the Guarantors in complying with their
obligations thereunder.
Dated: September 30, 1997
RC MANAGEMENT CORP.
By:
----------------------------------
Name:
Title:
RYDER AUTOMOTIVE CARRIER SERVICES, INC.
By:
----------------------------------
Name:
Title:
RYDER AUTOMOTIVE ACQUISITION, LLC
BY: CANADIAN ACQUISITION CORP.,
AS MEMBER
By:
----------------------------------
Name:
Title:
XXX XXXXX TRANSPORT INC.
By:
----------------------------------
Name:
Title:
G-1
47
RYDER AUTOMOTIVE OPERATIONS, INC.
By:
----------------------------------
Name:
Title:
RYDER FREIGHT BROKER, INC.
By:
----------------------------------
Name:
Title:
QAT, INC.
By:
----------------------------------
Name:
Title:
OSHCO, INC.
By:
----------------------------------
Name:
Title:
TERMINAL SERVICE CO.
By:
----------------------------------
Name:
Title:
X.X. XXXXXXX DRIVEAWAY CO., INC.
By:
----------------------------------
Name:
Title:
G-2
48
RMX, INC.
By:
----------------------------------
Name:
Title:
TRANSPORT SUPPORT, INC.
By:
----------------------------------
Name:
Title:
COMMERCIAL CARRIERS, INC.
By:
----------------------------------
Name:
Title:
B&C, INC.
By:
----------------------------------
Name:
Title:
G-3
49
EXIBIT F
================================================================================
REGISTRATION RIGHTS AGREEMENT
Dated as of September 30, 1997
by and among
Allied Holdings, Inc.,
the Guarantors Named on the Signature Pages Hereto
and
Bear, Xxxxxxx & Co. Inc.,
BT Alex. Xxxxx Incorporated
NationsBanc Capital Markets, Inc.
================================================================================
50
This Registration Rights Agreement (this "Agreement") is made and
entered into as of September 30, 1997 by and among Allied Holdings, Inc., a
Georgia corporation (the "Company"), the guarantors named on the signature pages
hereto (collectively, the "Guarantors" and, together with the Company, the
"Issuers"), and Bear, Xxxxxxx & Co., BT Alex. Xxxxx Incorporated and NationsBanc
Capital Markets, Inc. (collectively, the "Initial Purchasers"), who have agreed
to purchase the Company's 85/8% Series A Senior Notes due 2007 (together with
the guarantees thereof by the Guarantors, the "Series A Notes") pursuant to the
Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
September 19, 1997 (the "Purchase Agreement"), by and among the Issuers and the
Initial Purchasers. In order to induce the Initial Purchasers to purchase the
Series A Notes, the Issuers have agreed to provide the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchasers set forth in Section 3 of
the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series B Notes to be issued in the Exchange Offer, (b) the
maintenance of such Registration Statement as continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof, and (c) the delivery by the Issuers to
the Registrar under the Indenture of Series B Notes in the same aggregate
principal amount as the aggregate principal amount of Series A Notes that were
tendered by Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Series A Notes, each Interest
Payment Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Issuers under the Act of the
Series B Notes pursuant to the Exchange Offer Registration Statement pursuant to
which the Issuers offer the Holders of all outstanding Transfer Restricted
Securities the opportunity to exchange all such outstanding Transfer Restricted
Securities held by such Holders for Series B Notes in an aggregate principal
amount equal to the aggregate principal amount of the Transfer Restricted
Securities tendered in such exchange offer by such Holders.
51
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers
propose to sell the Series A Notes to (a) certain other "qualified institutional
buyers," as such term is defined in Rule 144A under the Act and (b) non-U.S.
persons outside the United States in reliance upon Regulation S under the Act.
Holders: As defined in Section 2(b) hereof.
Indenture: The Indenture, dated as of the date hereof, among the
Issuers and The First National Bank of Chicago, as trustee (the "Trustee"),
pursuant to which the Notes are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the Notes.
NASD: National Association of Securities Dealers, Inc.
Notes: The Series A Notes and the Series B Notes.
Person: An individual, partnership, corporation, limited liability
company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement,
including, without limitation, the Exchange Offer Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
Record Holder: With respect to any Damages Payment Date relating to
Notes, each Person who is a Holder of Notes on the record date with respect to
the Interest Payment Date on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Issuers
relating to (a) an offering of Series B Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, which is filed pursuant to the provisions of
this Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Series B Notes: The Company's 85/8% Series B Senior Notes due 2007
(together with the guarantees thereof by the Guarantors) to be issued pursuant
to the Indenture (a) in the Exchange Offer or (b) pursuant to a Shelf
Registration Statement, in each case, in exchange for Series A Notes.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
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TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note, until the earliest to occur
of (a) the date on which such Note is exchanged in the Exchange Offer and
entitled to be resold to the public by the Holder thereof without complying with
the prospectus delivery requirements of the Act, (b) the date on which such Note
has been effectively registered under the Act and disposed of in accordance with
a Shelf Registration Statement and (c) the date on which such Note is
distributed to the public pursuant to Rule 144 under the Act or by a
Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the
Exchange Offer Registration Statement (including delivery of the Prospectus
contained therein).
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Issuers are sold to an underwriter for reoffering to the
public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be
a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person owns Transfer Restricted Securities of record.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under applicable
law or Commission policy (after the procedures set forth in Section 6(a) below
have been complied with), the Issuers shall (i) cause to be filed with the
Commission on or prior to the 30th day after the Closing Date, the Exchange
Offer Registration Statement, (ii) use their reasonable best efforts to cause
such Exchange Offer Registration Statement to become effective on or prior to
the 90th day after the Closing Date, (iii) in connection with the foregoing,
file (A) all pre-effective amendments to such Exchange Offer Registration
Statement as may be necessary in order to cause such Exchange Offer Registration
Statement to become effective, (B) if applicable, a post-effective amendment to
such Exchange Offer Registration Statement pursuant to Rule 430A under the Act
and (C) cause all necessary filings in connection with the registration and
qualification of the Series B Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer, and
(iv) upon the effectiveness of such Exchange Offer Registration Statement,
commence and Consummate the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting registration of the Series B Notes to be offered in
exchange for the Transfer Restricted Securities and to permit resales of Notes
held by Broker-Dealers as contemplated by Section 3(c) below.
(b) The Issuers shall cause the Exchange Offer Registration Statement
to be effective continuously and shall keep the Exchange Offer open for a period
of not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 business days after the date notice of
the Exchange Offer has been mailed to Holders. The Issuers shall cause the
Exchange Offer to comply with all applicable federal and state securities laws.
No securities other than the Notes shall be included in the Exchange Offer
Registration Statement. The Issuers shall use their reasonable best efforts to
cause
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the Exchange Offer to be Consummated on or prior to the 30th business day after
the Exchange Offer Registration Statement has become effective.
(c) The Issuers shall indicate in a "Plan of Distribution" section in
the Prospectus contained in the Exchange Offer Registration Statement that any
Broker-Dealer who holds Series A Notes that are Transfer Restricted Securities
and that were acquired for its own account as a result of market-making
activities or other trading activities (other than Transfer Restricted
Securities acquired directly from the Issuers) may exchange such Series A Notes
pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be
an "underwriter" within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with any resales of
the Series B Notes received by such Broker-Dealer in the Exchange Offer, which
prospectus delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer Registration
Statement. Such "Plan of Distribution" section shall also contain all other
information with respect to such resales by Broker-Dealers that the Commission
may require in order to permit such resales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose the amount of
Notes held by any such Broker-Dealer except to the extent required by the
Commission as a result of a change in policy after the date of this Agreement.
The Issuers shall use their reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 6(c) below to the extent
necessary to ensure that it is available for resales of Notes acquired by
Broker-Dealers for their own accounts as a result of market-making activities or
other trading activities, and to ensure that it conforms with the requirements
of this Agreement, the Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of one year from the
date on which the Exchange Offer Registration Statement is declared effective.
The Issuers shall provide sufficient copies of the latest version of
such Prospectus to Broker-Dealers promptly upon request at any time during such
one-year period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Issuers are not required to file an
Exchange Offer Registration Statement or permitted to consummate the Exchange
Offer because the Exchange Offer is not permitted by applicable law or
Commission policy now or hereafter existing (after the procedures set forth in
Section 6(a) below have been complied with) or (ii) any Holder of Transfer
Restricted Securities notifies the Company on or prior to the 20th business day
following the Consummation of the Exchange Offer (A) that such Holder is
prohibited by applicable law or Commission policy from participating in the
Exchange Offer, or (B) that such Holder may not resell the Series B Notes
acquired by it in the Exchange Offer to the public without delivering a
prospectus and that the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder, or
(C) that such Holder is a Broker-Dealer and holds Series A Notes acquired
directly from the Issuers or one of their affiliates, then the Issuers shall:
(x) Use their reasonable best efforts to file a shelf
registration statement with the Commission pursuant to Rule 415 under
the Act, which may be an amendment to the Exchange Offer Registration
Statement (in either event, the "Shelf Registration Statement") on or
prior to the earliest to occur of (1) the 30th day after the date on
which the Issuers determine that they are not required to file the
Exchange Offer Registration Statement and (2) the 30th day after the
date on which the Company receives notice from a Holder of Transfer
Restricted
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Securities as contemplated by clause (ii) above (such earliest date
being the "Shelf Filing Deadline"), which Shelf Registration Statement
shall provide for resales of all Transfer Restricted Securities the
Holders of which shall have provided the information required pursuant
to Section 4(b) hereof; and
(y) Cause such Shelf Registration Statement to be declared
effective by the Commission on or prior to the 60th day after the Shelf
Filing Deadline.
The Issuers shall use their best efforts to keep such Shelf Registration
Statement continuously effective, supplemented and amended as required by the
provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure
that it is available for resales of Notes by the Holders of Transfer Restricted
Securities entitled to the benefit of this Section 4(a), and to ensure that it
conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of at least two years following the Closing Date.
(b) Provision by Holders of Certain Information in Connection
with the Shelf Registration Statement. No Holder of Transfer Restricted
Securities may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such Holder
furnishes to the Company in writing, within 20 business days after receipt of a
request therefor, such information as the Issuers may reasonably request for
use in connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. No Holder of Transfer Restricted
Securities shall be entitled to Liquidated Damages pursuant to Section 5 hereof
unless and until such Holder shall have used its best efforts to provide all
such reasonably requested information. Each Holder as to which any Shelf
Registration Statement is being effected agrees to furnish promptly to the
Issuers all information required to be disclosed in order to make the
information previously furnished to the Issuers by such Holder not misleading.
SECTION 5. LIQUIDATED DAMAGES
If (a) any of the Registration Statements required by this Agreement is
not filed with the Commission on or prior to the date specified for such filing
in this Agreement, (b) any of such Registration Statements has not been declared
effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target Date"), (c) the
Exchange Offer has not been Consummated within 30 business days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (d) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded immediately by a
post-effective amendment to such Registration Statement that cures such failure
and that is itself immediately declared effective (each such event referred to
in clauses (a) through (d), a "Registration Default"), the Issuers hereby
jointly and severally agree to pay Liquidated Damages to each Holder of Transfer
Restricted Securities with respect to the first 90-day period immediately
following the occurrence of the first Registration Default, in an amount equal
to $.05 per week per $1,000 principal amount of Transfer Restricted Securities
held by such Holder for each week or portion thereof that the Registration
Default continues. The amount of the Liquidated Damages shall increase by an
additional $.05 per week per $1,000 in principal amount of Transfer Restricted
Securities with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of Liquidated Damages of $.50
per week per $1,000 principal amount of Transfer Restricted Securities. All
accrued Liquidated Damages shall be paid by the Issuers on each Damages Payment
Date to Record Holders by wire transfer of immediately available funds or by
federal funds check and to Holders of Certificated Securities by wire transfers
to the accounts specified
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55
by them or by mailing checks to their registered addresses if no such accounts
have been specified on each Damages Payment Date, as provided in the Indenture.
Following the cure of all Registration Defaults relating to any particular
Transfer Restricted Securities, the accrual of Liquidated Damages with respect
to such Transfer Restricted Securities will cease.
All obligations of the Issuers set forth in the preceding paragraph
that are outstanding with respect to any Transfer Restricted Security at the
time such security ceases to be a Transfer Restricted Security shall survive
until such time as all such obligations with respect to such security shall have
been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Issuers shall comply with all of the provisions of Section
6(c) below, shall use their reasonable best efforts to effect such exchange to
permit the sale of Transfer Restricted Securities being sold in accordance with
the intended method or methods of distribution thereof, and shall comply with
all of the following provisions:
(i) If in the reasonable opinion of counsel to the Issuers there
is a question as to whether the Exchange Offer is permitted by applicable
law, the Issuers hereby agree to seek a no-action letter or other
favorable decision from the Commission allowing the Issuers to Consummate
an Exchange Offer for such Series A Notes. Each of the Issuers hereby
agrees to pursue the issuance of such a decision to the Commission staff
level but shall not be required to take commercially unreasonable action
to effect a change of Commission policy. Each of the Issuers hereby
agrees, however, to (A) participate in telephonic conferences with the
Commission, (B) deliver to the Commission staff an analysis prepared by
counsel to the Issuers setting forth the legal bases, if any, upon which
such counsel has concluded that such an Exchange Offer should be permitted
and (C) diligently pursue a resolution (which need not be favorable) by
the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Issuers,
prior to the Consummation thereof, a written representation to the Issuers
(which may be contained in the letter of transmittal contemplated by the
Exchange Offer Registration Statement) to the effect that (A) it is not an
affiliate of any Issuer, (B) it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding with any person to
participate in, a distribution of the Series B Notes to be issued in the
Exchange Offer and (C) it is acquiring the Series B Notes in its ordinary
course of business. In addition, all such Holders of Transfer Restricted
Securities shall otherwise cooperate in the Issuers'preparations for the
Exchange Offer. Each Holder, by its acceptance of Series A Notes, shall be
deemed to have acknowledged and agreed that any Broker-Dealer and any
such Holder using the Exchange Offer to participate in a distribution of
the securities to be acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings Corporation (available
May 13, 1988), as interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993, and similar no-action letters (including any
no-action letter obtained pursuant to clause (i) above), and (2) must
comply with the registration and prospectus delivery requirements of the
Act in connection with a secondary resale transaction and that such a
secondary resale transaction should be covered by an effective
registration statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K if the
resales are of Series B Notes
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obtained by such Holder in exchange for Series A Notes acquired by such
Holder directly from the Issuers.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Issuers shall provide a supplemental letter
to the Commission (A) stating that the Issuers are registering the
Exchange Offer in reliance on the position of the Commission enunciated
in Exxon Capital Holdings Corporation (available May 13, 1988), Xxxxxx
Xxxxxxx and Co., Inc. (available June 5, 1991) and, if applicable, any
no-action letter obtained pursuant to clause (i) above and (B)
including a representation that none of the Issuers has entered into
any arrangement or understanding with any Person to distribute the
Series B Notes to be received in the Exchange Offer and that, to the
best of the Issuers' information and belief, each Holder participating
in the Exchange Offer is acquiring the Series B Notes in its ordinary
course of business and has no arrangement or understanding with any
Person to participate in the distribution of the Series B Notes
received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the
Shelf Registration Statement, the Issuers shall comply with all the provisions
of Section 6(c) below and shall use their reasonable best efforts to effect
such registration to permit the sale of the Transfer Restricted Securities
being sold in accordance with the intended method or methods of distribution
thereof, and pursuant thereto the Issuers will as expeditiously as possible
prepare and file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Act, which form shall be
available for the sale of the Transfer Restricted Securities in accordance with
the intended method or methods of distribution thereof.
(c) General Provisions. In connection with any
Registration Statement and any Prospectus required by this Agreement to permit
the sale or resale of Transfer Restricted Securities (including, without
limitation, any Registration Statement and the related Prospectus required to
permit resales of Notes by Broker-Dealers), the Issuers shall:
(i) use their reasonable best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements (including, if required by the Act or any
regulation thereunder, financial statements of the Guarantors) for the
period specified in Section 3 or 4 hereof, as applicable; upon the
occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable for
resale of Transfer Restricted Securities during the period required by
this Agreement, the Issuers shall file promptly an appropriate
amendment to such Registration Statement, in the case of clause (A),
correcting any such misstatement or omission, and, in the case of
either clause (A) or (B), use their reasonable best efforts to cause
such amendment to be declared effective and such Registration Statement
and the related Prospectus to become usable for their intended
purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as applicable, or
such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold; cause
the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424
under the Act, and to comply fully with the applicable provisions of
Rules 424 and 430A under the Act in a timely manner; and comply with
the provisions of the Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable
period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
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(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information relating thereto, (C)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the
suspension by any state securities commission of the qualification of
the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the happening
of any event that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or
that requires the making of any additions to or changes in the
Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes
in the Prospectus in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. If at any
time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws,
the Issuers shall use their reasonable best efforts to promptly obtain
the withdrawal or lifting of such order;
(iv) furnish to each of the selling Holders and each of the
underwriter(s), if any, (all of whom shall be deemed to have
acknowledged the confidentiality of the information contained in the
foregoing documents) before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review and comment of such Holders and underwriter(s),
if any, for a period of at least five business days, and the Issuers
will not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or
Prospectus (including all such documents incorporated by reference) to
which a selling Holder of Transfer Restricted Securities covered by
such Registration Statement or the underwriter(s), if any, shall
reasonably object within five business days after the receipt thereof.
A selling Holder or underwriter, if any, shall be deemed to have
reasonably objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission or fails to comply
with the applicable requirements of the Act;
(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the selling Holders and to the
underwriter(s), if any, make the Issuers' representatives available for
discussion of such document and other customary due diligence matters,
and include such information in such document prior to the filing
thereof as such selling Holders or underwriter(s), if any, reasonably
may request;
(vi) make available at reasonable times for inspection by the
selling Holders, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney or accountant
retained by such selling Holders or any of the underwriter(s), all
financial and other records, pertinent corporate documents and
properties of the Issuers and cause the Issuers' officers, directors
and employees to supply all information reasonably requested by any
such Holder, underwriter, attorney or accountant in connection with
such Registration Statement subsequent to the filing thereof and prior
to its effectiveness;
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(vii) if requested by any selling Holders or the
underwriter(s), if any, promptly include in any Registration Statement
or Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such selling Holders and underwriter(s),
if any, may reasonably request to have included therein, including,
without limitation, information relating to the "Plan of Distribution"
of the Transfer Restricted Securities, information with respect to the
principal amount of Transfer Restricted Securities being sold to such
underwriter(s), the purchase price being paid therefor and any other
terms of the offering of the Transfer Restricted Securities to be sold
in such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after the
Issuers are notified of the matters to be included in such Prospectus
supplement or post-effective amendment;
(viii) in the case of a Shelf Registration Statement, cause
the Transfer Restricted Securities covered by the Registration
Statement to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate principal amount of
Notes covered thereby or the underwriter(s), if any;
(ix) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference);
(x) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Issuers
hereby consent to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of
the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto; provided, that such use of the
Prospectus and any amendment or supplement thereto and such offering
and sale conforms to the "Plan of Distribution" section contained in
the Prospectus and complies with this Agreement and all applicable laws
and regulations;
(xi) enter into such agreements (including an underwriting
agreement), and make such representations and warranties, and take all
such other customary actions in connection therewith in order to
expedite or facilitate the disposition of the Transfer Restricted
Securities pursuant to any Shelf Registration Statement contemplated by
this Agreement, all to such extent as may be requested by the Initial
Purchasers or by any Holder of Transfer Restricted Securities or
underwriter in connection with any sale or resale pursuant to any Shelf
Registration Statement contemplated by this Agreement; and whether or
not an underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, the Issuers shall:
(A) furnish to each of the Initial Purchasers, each
selling Holder and each underwriter, if any, in such substance
and scope as they may request and as are customarily made by
issuers to underwriters in primary underwritten offerings,
upon the effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of
effectiveness of the Shelf Registration Statement,
signed by (x) an authorized executive officer and (y)
a principal financial or accounting officer of each
of the Issuers, confirming, as of the date thereof,
the matters set forth in paragraphs (a), (b), (c) and
(d) of Section 8 of the Purchase Agreement and such
other matters as such parties may reasonably request;
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(2) an opinion, dated the date of
effectiveness of the Shelf Registration Statement, of
counsel for the Issuers, covering the matters set
forth in paragraphs (1) through (25) of Exhibit E to
the Purchase Agreement and such other matters as such
parties may reasonably request, and in any event
including a statement to the effect that such counsel
has participated in conferences with officers and
other representatives of the Issuers, representatives
of the independent public accountants for the
Issuers, the Initial Purchasers' representatives and
the Initial Purchasers' counsel in connection with
the preparation of such Registration Statement and
the related Prospectus and have considered the
matters required to be stated therein and the
statements contained therein, although such counsel
has not independently verified the accuracy,
completeness or fairness of such statements; and that
such counsel advises that, on the basis of the
foregoing (relying as to materiality to a large
extent upon facts provided to such counsel by
officers and other representatives of the Issuers and
without independent check or verification), no facts
came to such counsel's attention that caused such
counsel to believe that the applicable Registration
Statement, at the time such Registration Statement or
any post-effective amendment thereto became
effective, contained an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading, or that the
Prospectus contained in such Registration Statement
as of its date and, contained an untrue statement of
a material fact or omitted to state a material fact
necessary in order to make the statements therein, in
light of the circumstances under which they were
made, not misleading. Without limiting the foregoing,
such counsel may state further that such counsel
assumes no responsibility for, and has not
independently verified, the accuracy, completeness or
fairness of the financial statements, notes and
schedules and other financial data included in any
Registration Statement contemplated by this Agreement
or the related Prospectus; and
(3) a customary comfort letter, dated as of
the date of Consummation of the Exchange Offer or the
date of effectiveness of the Shelf Registration
Statement, as the case may be, from the Issuers'
independent accountants, in the customary form and
covering matters of the type customarily covered in
comfort letters by underwriters in connection with
primary underwritten offerings, and affirming the
matters set forth in the comfort letters delivered
pursuant to Section 8 of the Purchase Agreement,
without exception;
(B) set forth in full or incorporate by reference in
the underwriting agreement, if any, the indemnification
provisions and procedures of Section 8 hereof (and any other
customary indemnification provisions and procedures that any
underwriters may reasonably request) with respect to all
parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as
may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Issuers pursuant to this clause
(xi), if any.
If at any time the representations and warranties of the
Issuers contemplated in clause (A)(1) above cease to be true and
correct, the Issuers shall so advise the Initial Purchasers and the
underwriter(s), if any, and each selling Holder promptly and, if
requested by such Persons, shall confirm such advice in writing;
(xii) prior to any public offering of Transfer
Restricted Securities, cooperate with the selling Holders, the
underwriter(s), if any, and their respective counsel in connection
with the
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registration and qualification of the Transfer Restricted Securities
under the securities or Blue Sky laws of such jurisdictions as the
selling Holders or underwriter(s) may request and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
Shelf Registration Statement; provided, however, that none of the
Issuers shall be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that
would subject it to the service of process in suits or to taxation,
other than as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject;
(xiii) shall issue, upon the request of any Holder of Series A
Notes covered by the Shelf Registration Statement, Series B Notes,
having an aggregate principal amount equal to the aggregate principal
amount of Series A Notes surrendered to the Issuers by such Holder in
exchange therefor or being sold by such Holder; such Series B Notes to
be registered in the name of such Holder or in the name of the
purchaser(s) of such Notes, as the case may be; in return, the Series A
Notes held by such Holder shall be surrendered to the Issuers for
cancellation;
(xiv) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and enable such
Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s), if any,
may request at least two business days prior to any sale of Transfer
Restricted Securities made by such underwriter(s);
(xv) use their best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with
or approved by such other governmental agencies or authorities as may
be necessary to enable the seller or sellers thereof or the
underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause
(viii) above;
(xvi) if any fact or event contemplated by clause (c)(iii)(D)
above shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement and provide the Trustee under the Indenture with printed
certificates for the Transfer Restricted Securities which are in a form
eligible for deposit with the Depositary Trust Company;
(xviii) cooperate and assist in any filings required to be
made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD, and use its reasonable best efforts
to cause such Registration Statement to become effective and approved
by such governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Securities to consummate
the disposition of such Transfer Restricted Securities;
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(xix) otherwise use their reasonable best efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to its security holders, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) for the twelve-month period (A) commencing
at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or best efforts
Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration
Statement;
(xx) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate
with the Trustee and the Holders of Notes to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use their
reasonable best efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner;
(xxi) cause all Transfer Restricted Securities covered by
the Registration Statement to be listed on each securities exchange on
which similar securities issued by the Issuers are then listed if
requested by the Holders of a majority in aggregate principal amount of
Series A Notes or the managing underwriter(s), if any; and
(xxii) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice from the Issuers of the existence of
any fact of the kind described in Section 6(c)(iii)(D) hereof, such Holder will
keep such notice confidential and forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the applicable Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xvi) hereof, or until it is advised in writing
(the "Advice") by the Issuers that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus. If so directed by the Issuers,
each Holder will deliver to the Issuers (at the Issuers' expense) all copies,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Transfer Restricted Securities that was current at the
time of receipt of such notice. In the event the Issuers shall give any such
notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and including
the date when each selling Holder covered by such Registration Statement shall
have received the copies of the supplemented or amended Prospectus contemplated
by Section 6(c)(xvi) hereof or shall have received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Issuers' performance of or
compliance with this Agreement will be borne by the Issuers, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses (including
filings made by any Initial Purchasers or Holder with the NASD (and, if
applicable, the fees and expenses of any "qualified independent underwriter"
and its counsel that may be required by the rules and regulations of the
NASD)); (ii) all fees and expenses of compliance with federal securities and
state Blue Sky or securities
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laws; (iii) all expenses of printing (including printing certificates for the
Series B Notes to be issued in the Exchange Offer and printing of Prospectuses),
messenger and delivery services and telephone; (iv) all fees and disbursements
of counsel for the Issuers and, subject to Section 7(b) below, the Holders of
Transfer Restricted Securities; (v) all application and filing fees in
connection with listing Notes on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and (vi) all fees and
disbursements of independent certified public accountants of the Issuers
(including the expenses of any special audit and comfort letters required by or
incident to such performance).
The Issuers will, in any event, bear their internal expenses
(including, without limitation, all salaries and expenses of their officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Issuers.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Issuers will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Xxxxxx & Xxxxxxx or such other counsel as may be chosen by the Holders of a
majority in aggregate principal amount of the Transfer Restricted Securities for
whose benefit such Registration Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Issuers, jointly and severally, agree to indemnify and hold
harmless (i) each Holder, (ii) each person, if any, who controls any Holder
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act
and (iii) the respective officers, directors, partners, employees,
representatives and agents of each Holder or any controlling person to the
fullest extent lawful, from and against any and all losses, liabilities, claims,
damages and expenses whatsoever (including but not limited to attorneys' fees
and any and all expenses whatsoever incurred in investigating, preparing or
defending against any investigation or litigation, commenced or threatened, or
any claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus, or in any
supplement thereto or amendment thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Issuers will not be liable in any such case to the extent, but only to
the extent, that any such loss, liability, claim, damage or expense arises out
of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with information relating to any Holder furnished to the Issuers in writing by
or on behalf of such Holder expressly for use therein. This indemnity agreement
will be in addition to any liability which the Issuers may otherwise have,
including, under this Agreement.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless (i) the Issuers, (ii) each person, if any, who controls the
Issuers within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act and (iii) each person, if any, who controls any Issuer, against any
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losses, liabilities, claims, damages and expenses whatsoever (including but not
limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any investigation or litigation,
commenced or threatened, or any claim whatsoever and any and all amounts paid in
settlement of any claim or litigation), joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that any such loss, liability,
claim, damage or expense arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with information relating to any Holder
furnished to the Issuers in writing by or on behalf of such Holder expressly for
use therein; provided, however, that in no case shall any Holder be liable or
responsible for any amount in excess of the dollar amount of the proceeds
received by such Holder upon the sale of the Notes giving rise to such
indemnification obligation. This indemnity will be in addition to any liability
which any Holder may otherwise have, including under this Agreement.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom indemnification is
to be sought in writing of the commencement thereof (but the failure so to
notify an indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent that it has been prejudiced
in any material respect by such failure or from any liability which it may
otherwise have). In case any such action is brought against any indemnified
party, and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent it
may elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel reasonably satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by the indemnifying parties in connection with the defense of such
action, (ii) the indemnifying parties shall not have employed counsel to take
charge of the defense of such action within a reasonable time after notice of
commencement of the action, or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying party or parties shall not
have the right to direct the defense of such action on behalf of the indemnified
party or parties), in any of which events such fees and expenses of counsel
shall be borne by the indemnifying parties; provided, however, that the
indemnifying party under subsection (a) or (b) above shall only be liable for
the legal expenses of one counsel (in addition to any local counsel) for all
indemnified parties in each jurisdiction in which any claim or action is
brought. Anything in this subsection to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of any claim or action
effected without its prior written consent; provided, however, that such consent
was not unreasonably withheld.
(d) In order to provide for contribution in circumstances in which
the indemnification provided for in this Section 8 is for any reason held to be
unavailable from the Issuers or is insufficient to hold harmless a party
indemnified hereunder, the Issuers, on the one hand, and each Holder, on the
other hand, shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature
14
64
contemplated by such indemnification provision (including any investigation,
legal and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted, but after
deducting in the case of losses, claims, damages, liabilities and expenses
suffered by the Issuers, any contribution received by the Issuers from persons,
other than the Holders, who may also be liable for contribution, including
persons who control the Issuers within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act) to which the Issuers and such Holder may be
subject, in such proportion as is appropriate to reflect the relative benefits
received by the Issuers, on one hand, and such Holder, on the other hand, if
such allocation is not permitted by applicable law or indemnification is not
available as a result of the indemnifying party not having received notice as
provided in this Section 8, in such proportion as is appropriate to reflect not
only the relative benefits referred to above but also the relative fault of the
Issuers, on the one hand, and such Holder, on the other hand, in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Issuers, on one hand, and each Holder, on
the other hand, shall be deemed to be in the same proportion as (i) the total
proceeds from the offering of the Notes (net of discounts but before deducting
expenses) received by the Issuers and (ii) the total proceeds received by such
Holder upon the sale of the Notes giving rise to such indemnification
obligation. The relative fault of the Issuers, on the one hand, and of each
Holder, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Issuers or such Holder and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Issuers and the Holders agree that it would not be
just and equitable if contribution pursuant to this Section 8(d) were determined
by pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to above. Notwithstanding the
provisions of this Section 8(d), (i) in no case shall any Holder be required to
contribute any amount in excess of the dollar amount by which the proceeds
received by such Holder upon the sale of the Notes exceeds the amount of any
damages which such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8(d),
(A) each person, if any, who controls any Holder within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act and (B) the respective
officers, directors, partners, employees, representatives and agents of each
Holder or any controlling person shall have the same rights to contribution as
such Holder, and each person, if any, who controls the Issuers within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act shall have
the same rights to contribution as the Issuers, subject in each case to clauses
(i) and (ii) of this Section 8(d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this Section 8(d), notify such
party or parties from whom contribution may be sought, but the failure to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 8(d) or otherwise. No party shall be liable for contribution with
respect to any action or claim settled without its prior written consent;
provided, however, that such written consent was not unreasonably withheld.
SECTION 9. RULE 144A
The Issuers hereby agree with each Holder, for so long as (i) the
Company is not subject to the reporting requirements of Section 13 or 15 of the
Exchange Act and (ii) any Transfer Restricted Securities remain outstanding, to
make available to any Holder or beneficial owner of Transfer Restricted
Securities
15
65
in connection with any sale thereof and any prospective purchaser of such
Transfer Restricted Securities from such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lockup letters and other documents required under the
terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Issuers.
SECTION 12. MISCELLANEOUS
(a) Remedies. The Issuers agree that monetary damages (including the
Liquidated Damages contemplated hereby) would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Issuers will not, on or after the
date of this Agreement, enter into any agreement with respect to their
respective securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions hereof.
None of the Issuers has previously entered into any agreement granting any
registration rights with respect to its securities to any Person. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Issuers' securities
under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. None of the Issuers will take
any action with respect to the Notes that would materially and adversely affect
the ability of the Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless the Issuers have obtained
the written consent of Holders of a majority of the outstanding principal
amount of Transfer Restricted Securities. Notwithstanding the foregoing, a
waiver or consent to departure from the provisions hereof that relates
exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant to
such Exchange Offer may be given
16
66
by the Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities being tendered or registered.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under
the Indenture; and
(ii) if to the any of the Issuers:
Allied Holdings, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
With copies to:
Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; provided, however, that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(I) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
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67
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement, together with the other Operative
Documents (as defined in the Purchase Agreement), is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Issuers with
respect to the Transfer Restricted Securities. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
[signature pages follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ALLIED HOLDINGS, INC.
By:
-------------------------
Name:
Title:
ALLIED AUTOMOTIVE GROUP, INC.
By:
-------------------------
Name:
Title:
ALLIED INDUSTRIES INCORPORATED
By:
-------------------------
Name:
Title:
HAUL RISK MANAGEMENT SERVICES, INC.
By:
-------------------------
Name:
Title:
LINK INFORMATION SYSTEMS, INC.
By:
-------------------------
Name:
Title:
ALLIED SOUTHWOODS, INC.
By:
-------------------------
Name:
Title:
S-1
69
AXIS GROUP, INC.
By:
-------------------------
Name:
Title:
ALLIED SYSTEMS, LTD. (L.P.)
BY: ALLIED AUTOMOTIVE GROUP, INC.,
as general partner
By:
-------------------------
Name:
Title:
ALLIED, INC.
By:
-------------------------
Name:
Title:
INTER MOBILE, INC.
By:
-------------------------
Name:
Title:
LEGION TRANSPORTATION, INC.
By:
-------------------------
Name:
Title:
INNOVATIVE CAR CARRIERS, INC.
By:
-------------------------
Name:
Title:
S-2
70
AUTOMOTIVE TRANSPORT SERVICES, INC.
By:
-------------------------
Name:
Title:
AUTO HAULAWAY INC.
By:
-------------------------
Name:
Title:
AUTO HAULAWAY RELEASING SERVICES
(1981) LIMITED
By:
-------------------------
Name:
Title:
AXIS INTERNATIONAL, INC.
By:
-------------------------
Name:
Title:
AXIS TRUCK LEASING, INC.
By:
-------------------------
Name:
Title:
AXIS NORTH AMERICA, INC.
By:
-------------------------
Name:
Title:
S-3
00
XXXXXXX XXXXXX XXXXXXXX COMPANY, INC.
By:
-------------------------
Name:
Title:
CLAIREMONT DRIVER EXCHANGE COMPANY, INC.
By:
-------------------------
Name:
Title:
KAR-TAINER INTERNATIONAL, INC.
By:
-------------------------
Name:
Title:
A H ACQUISITION CORP.
By:
-------------------------
Name:
Title:
CANADIAN ACQUISITION CORP.
By:
-------------------------
Name:
Title:
AXIS NATIONAL INCORPORATED
By:
-------------------------
Name:
Title:
S-4
72
RC MANAGEMENT CORP.
By:
-------------------------
Name:
Title:
RYDER AUTOMOTIVE CARRIER SERVICES, INC.
By:
-------------------------
Name:
Title:
RYDER AUTOMOTIVE ACQUISITION, LLC
BY: CANADIAN ACQUISITION CORP.,
as member
By:
-------------------------
Name:
Title:
XXX XXXXX TRANSPORT INC.
By:
-------------------------
Name:
Title:
RYDER AUTOMOTIVE OPERATIONS, INC.
By:
-------------------------
Name:
Title:
RYDER FREIGHT BROKER, INC.
By:
-------------------------
Name:
Title:
S-5
73
QAT, INC.
By:
-------------------------
Name:
Title:
OSHCO, INC.
By:
-------------------------
Name:
Title:
TERMINAL SERVICE CO.
By:
-------------------------
Name:
Title:
X.X. XXXXXXX DRIVEAWAY CO., INC.
By:
-------------------------
Name:
Title:
RMX, INC.
By:
-------------------------
Name:
Title:
TRANSPORT SUPPORT, INC.
By:
-------------------------
Name:
Title:
S-6
74
COMMERCIAL CARRIERS, INC.
By:
-------------------------
Name:
Title:
B&C, INC.
By:
-------------------------
Name:
Title:
BEAR, XXXXXXX & CO. INC.
BT ALEX. XXXXX INCORPORATED
NATIONSBANC CAPITAL MARKETS, INC.
BY: BEAR, XXXXXXX & CO. INC.
By:
-------------------------
Name:
Title:
S-7
