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EXHIBIT 4.2
EXECUTION COPY
THE GNI GROUP, INC.
AND
THE GUARANTORS NAMED ON THE SIGNATURE PAGES HERETO
$75,000,000
10-7/8% Series A Senior Notes due 2005
Purchase Agreement
July 23, 1998
CIBC XXXXXXXXXXX CORP.
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$75,000,000
10-7/8% Series A Senior Notes due 2005
of THE GNI GROUP, INC.
PURCHASE AGREEMENT
July 23, 1998
CIBC Xxxxxxxxxxx Corp.
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
The GNI Group, Inc., a Delaware corporation (the "COMPANY"),
proposes to issue and sell to CIBC Xxxxxxxxxxx Corp. (the "INITIAL PURCHASER")
an aggregate of $75,000,000 in principal amount of its 10-7/8% Series A Senior
Notes due 2005 (the "SERIES A NOTES"), subject to the terms and conditions set
forth herein. The Series A Notes are to be issued pursuant to the provisions
of an indenture (the "INDENTURE"), to be dated as of the Closing Date (as
defined below), among the Company, the Guarantors (as defined below) and United
States Trust Company of New York, as trustee (the "TRUSTEE"). The Series A
Notes and the Series B Notes (as defined below) issuable in exchange therefor
are collectively referred to herein as the "NOTES." The Series A Notes will be
fully and unconditionally guaranteed (the "SERIES A SUBSIDIARY GUARANTEES") on
a joint and several basis by each of the entities listed on Schedule A hereto
(each, a "GUARANTOR" and collectively the "GUARANTORS"). The Series B Notes
will be fully and unconditionally guaranteed (the "SERIES B SUBSIDIARY
GUARANTEES" and, together with the Series A Subsidiary Guarantees, the
"SUBSIDIARY GUARANTEES") on a joint and several basis by each of the
Guarantors. Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Indenture.
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1. OFFERING MEMORANDUM. The Series A Notes (including Series
A Subsidiary Guarantees) will be offered and sold to the Initial Purchaser
pursuant to one or more exemptions from the registration requirements under the
Securities Act of 1933, as amended (the "ACT"). The Company and the Guarantors
have prepared a preliminary offering memorandum, dated July 13, 1998 (the
"PRELIMINARY OFFERING MEMORANDUM"), and a final offering memorandum, dated July
23, 1998 (the "OFFERING MEMORANDUM"), relating to the Notes and the Subsidiary
Guarantees.
Upon original issuance thereof, and until such time as the
same is no longer required pursuant to the Indenture, the Series A Notes (and
all securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF U.S. PERSONS, EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1) REPRESENTS
THAT (X) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) (A "QIB"), (Y) IT HAS ACQUIRED THIS NOTE
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT OR (Z) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULES 501 (A) (1), (2), (3) OR (7) OF THE SECURITIES ACT (AN
"INSTITUTIONAL ACCREDITED INVESTOR")), (2) AGREES THAT IT WILL NOT
RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE GNI GROUP,
INC. OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (C) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES TO A NON-U.S. PERSON
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR
TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN
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REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM
COUNSEL TO THE COMPANY) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained herein, the Company agrees to
issue and sell to the Initial Purchaser, and the Initial Purchaser agrees to
purchase from the Company, an aggregate principal amount of $75,000,000 of
Series A Notes (including the Series A Subsidiary Guarantees) at a purchase
price equal to 97.0% of the principal amount of the Series A Notes (the
"PURCHASE PRICE").
3. TERMS OF OFFERING. The Initial Purchaser has advised the
Company that the Initial Purchaser will make offers (the "EXEMPT RESALES") of
the Series A Notes (including Series A Subsidiary Guarantees) purchased
hereunder on the terms set forth in the Offering Memorandum, as amended or
supplemented, solely to (i) persons whom the Initial Purchaser reasonably
believes to be "qualified institutional buyers" as defined in Rule 144A under
the Act ("QIBS") and (ii) to persons permitted to purchase the Series A Notes
in offshore transactions in reliance upon Regulation S under the Act (each, a
"REGULATION S PURCHASER") (such persons specified in clauses (i) and (ii) being
referred to herein as the "ELIGIBLE PURCHASERS"). The Initial Purchaser will
offer the Series A Notes (including Series A Subsidiary Guarantees) to
Eligible
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Purchasers initially at a price equal to 100.0% of the principal amount of the
Series A Notes. Such price may be changed at any time without notice.
Holders (including subsequent transferees) of the Series A
Notes (including Series A Subsidiary Guarantees) will have the registration
rights set forth in the registration rights agreement (the "REGISTRATION RIGHTS
AGREEMENT"), to be dated the Closing Date, in the form of Exhibit A hereto, for
so long as such Series A Notes or Series A Subsidiary Guarantees constitute
"TRANSFER RESTRICTED SECURITIES" (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the Company and the
Guarantors will agree to file with the Securities and Exchange Commission (the
"COMMISSION") under the circumstances set forth therein, (i) a registration
statement under the Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") relating
to the Company's 10-7/8% Series B Senior Notes due 2005 (the "SERIES B NOTES")
and the Series B Subsidiary Guarantees thereof, to be offered in exchange for
the Series A Notes and the Series A Subsidiary Guarantees thereof (such offer to
exchange being referred to as the "EXCHANGE OFFER") and (ii) under certain
circumstances, as provided in the Registration Rights Agreement, a shelf
registration statement pursuant to Rule 415 under the Act (the "SHELF
REGISTRATION STATEMENT" and, together with the Exchange Offer Registration
Statement, the "REGISTRATION STATEMENTS") relating to the resale by certain
holders of the Series A Notes (including Series A Subsidiary Guarantees) and to
use commercially reasonable efforts to cause such Registration Statements to be
declared and remain effective and usable for the periods specified in the
Registration Rights Agreement and to consummate the Exchange Offer. This
Agreement, the Indenture, the Notes, the Subsidiary Guarantees, the Registration
Rights Agreement, the Credit Documents (as defined below) and the Merger
Documents (as defined below) are hereinafter sometimes referred to collectively
as the "OPERATIVE DOCUMENTS."
4. DELIVERY AND PAYMENT.
(a) Delivery of, and payment of the Purchase
Price for, the Series A Notes (including Series A Subsidiary Guarantees) shall
be made at the offices of Xxxxxx, Xxxxx & Xxxxxxx LLP 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 July 28, 1998 or at such other time on the same date
or such other date as shall be agreed upon by the Initial Purchaser and the
Company in writing. The time and date of such delivery and the payment for the
Series A Notes (including the Series A Subsidiary Guarantees), are herein called
the "CLOSING DATE."
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(b) One or more of the Series A Notes (including
Series A Subsidiary Guarantees attached thereto) in definitive global form,
registered in the name of Cede & Co., as nominee of the Depository Trust
Company ("DTC"), having an aggregate principal amount corresponding to the
aggregate principal amount of the Series A Notes (including the Series A
Subsidiary Guarantees) (collectively, the "GLOBAL NOTE"), shall be delivered by
the Company to the Initial Purchaser (or as the Initial Purchaser directs) in
each case with any transfer taxes thereon duly paid by the Company against
payment by the Initial Purchaser of the Purchase Price thereof by wire transfer
in same day funds to the order of the Company. The Global Note shall be made
available to the Initial Purchaser for inspection not later than 5:30 a.m., New
York City time, on the business day immediately preceding the Closing Date.
5. AGREEMENTS OF THE COMPANY AND THE GUARANTORS. Each of the
Company and the Guarantors hereby jointly and severally agrees with the
Initial Purchaser as follows:
(a) To advise the Initial Purchaser promptly and,
if requested by the Initial Purchaser, confirm such advice in writing, (i) of
the issuance by any state securities commission of any stop order suspending
the qualification or exemption from qualification of any Series A Notes or
Series A Subsidiary Guarantees for offering or sale in any jurisdiction
designated by the Initial Purchaser pursuant to Section 5(e) hereof, or the
initiation of any proceeding by any state securities commission or any other
federal or state regulatory authority for such purpose and (ii) of the
happening of any event during the period referred to in Section 5(c) below that
makes any statement of a material fact made in the Preliminary Offering
Memorandum or the Offering Memorandum untrue or that requires any additions to
or changes in the Preliminary Offering Memorandum or the Offering Memorandum in
order to make the statements therein not misleading or its becomes necessary to
amend or supplement the Offering Memorandum in order to make the statements
therein, in the light of the circumstances when such Offering Memorandum is
delivered to an Eligible Purchaser, not misleading, or if, in the opinion of
counsel to the Initial Purchaser, it is necessary to amend or supplement the
Offering Memorandum to comply with any applicable law, forthwith to prepare an
appropriate amendment or supplement to such Offering Memorandum so that the
statements therein, as so amended or supplemented, will not, in the light of
the circumstances when it is so delivered, be misleading, or so that such
Offering Memorandum will comply with applicable law. The Company and the
Guarantors shall use commercially reasonable efforts to prevent the issuance of
any stop order or order suspending the qualification or exemption of any Series
A Notes or Series A Subsidiary Guarantees under any applicable state securities
or Blue Sky laws and, if at any time any state securities commission or other
federal or state regulatory authority shall issue an order suspending
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the qualification or exemption of any Series A Notes or Series A Subsidiary
Guarantees under any state securities or Blue Sky laws, the Company and the
Guarantors shall use commercially reasonable efforts to obtain the withdrawal
or lifting of such order at the earliest possible time.
(b) To furnish the Initial Purchaser and those
persons identified by the Initial Purchaser to the Company as many copies of
the Preliminary Offering Memorandum and the Offering Memorandum, and any
amendments or supplements thereto, as the Initial Purchaser may reasonably
request for the time period specified in Section 5(c). Subject to the Initial
Purchaser's compliance with its representations and warranties and agreements
set forth in Section 7 hereof, the Company consents to the use of the
Preliminary Offering Memorandum and the Offering Memorandum, and any amendments
and supplements thereto required pursuant hereto, by the Initial Purchaser in
connection with Exempt Resales.
(c) During such period as an Offering Memorandum
is required by law to be delivered in connection with Exempt Resales by the
Initial Purchaser and in connection with market-making activities of the
Initial Purchaser for so long as any Series A Notes (including Series A
Subsidiary Guarantees) are outstanding, (i) not to make any amendment or
supplement to the Offering Memorandum of which the Initial Purchaser shall not
previously have been advised or to which the Initial Purchaser shall reasonably
object after being so advised and (ii) to prepare promptly upon the Initial
Purchaser's reasonable request, any amendment or supplement to the Offering
Memorandum which may be necessary or advisable in connection with such Exempt
Resales or such market-making activities.
(d) If, during the period referred to in Section
5(c) above, any event shall occur or condition shall exist as a result of
which, in the opinion of counsel to the Initial Purchaser, it becomes necessary
to amend or supplement the Offering Memorandum in order to make the statements
therein, in the light of the circumstances when such Offering Memorandum is
delivered to an Eligible Purchaser, not misleading, or if, in the opinion of
counsel to the Initial Purchaser, it is necessary to amend or supplement the
Offering Memorandum to comply with any applicable law, forthwith to prepare an
appropriate amendment or supplement to such Offering Memorandum so that the
statements therein, as so amended or supplemented, will not, in the light of
the circumstances when it is so delivered, be misleading, or so that such
Offering Memorandum will comply with applicable law, and to furnish to the
Initial Purchaser and such other persons as the Initial Purchaser may designate
such number of copies thereof as the Initial Purchaser may reasonably request.
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(e) Prior to the sale of all Series A Notes
(including Series A Subsidiary Guarantees) pursuant to Exempt Resales as
contemplated hereby, to cooperate with the Initial Purchaser and counsel to the
Initial Purchaser in connection with the registration or qualification of the
Series A Notes (including Series A Subsidiary Guarantees) for offer and sale to
the Initial Purchaser and pursuant to Exempt Resales under the securities or
Blue Sky laws of such jurisdictions as the Initial Purchaser may commercially
reasonably request and to continue such registration or qualification in effect
so long as required for Exempt Resales and to file such consents to service of
process or other documents as may be commercially reasonably necessary in order
to effect such registration or qualification; provided, however, that neither
the Company nor any Guarantor shall be required in connection therewith to
qualify as a foreign corporation in any jurisdiction in which it is not now so
qualified or to take any action that would subject it to general consent to
service of process or taxation other than as to matters and transactions
relating to the Preliminary Offering Memorandum, the Offering Memorandum or
Exempt Resales, in any jurisdiction in which it is not now so subject.
(f) So long as the Notes are outstanding, (i) to
mail and make generally available as soon as practicable after the end of each
fiscal year to the record holders of the Notes a financial report of the
Company and its subsidiaries on a consolidated basis (and a similar financial
report of all unconsolidated subsidiaries, if any), all such financial reports
to include a consolidated balance sheet, a consolidated statement of
operations, a consolidated statement of cash flows and a consolidated statement
of stockholders' equity as of the end of and for such fiscal year, together
with comparable information as of the end of and for the preceding year,
certified by the Company's independent public accountants and (ii) to mail and
make generally available as soon as practicable after the end of each quarterly
period (except for the last quarterly period of each fiscal year) to such
holders, a consolidated balance sheet, a consolidated statement of operations
and a consolidated statement of cash flows (and similar financial reports of
all unconsolidated subsidiaries, if any) as of the end of and for such period,
and for the period from the beginning of such year to the close of such
quarterly period, together with comparable information for the corresponding
periods of the preceding year.
(g) So long as the Notes are outstanding, to
furnish to the Initial Purchaser as soon as available copies of all reports or
other communications furnished by the Company or any of the Guarantors to its
security holders or furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company or any of
the Guarantors is listed and such other publicly available information
concerning the Company and/or its subsidiaries as the Initial Purchaser may
reasonably request.
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(h) So long as any of the Series A Notes remain
outstanding and during any period in which the Company and the Guarantors are
not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), to make available to any holder of Series A Notes
in connection with any sale thereof and any prospective purchaser of such
Series A Notes from such holder, the information ("RULE 144A INFORMATION")
required by Rule 144A(d)(4) under the Act.
(i) Whether or not the transactions contemplated
in this Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of the obligations of
the Company and the Guarantors under this Agreement, including: (i) the fees,
disbursements and expenses of counsel to the Company and the Guarantors and
accountants of the Company and the Guarantors in connection with the sale and
delivery of the Series A Notes (including Series A Subsidiary Guarantees) to
the Initial Purchaser and pursuant to Exempt Resales, and all other fees and
expenses in connection with the preparation, printing, filing and distribution
of the Preliminary Offering Memorandum, the Offering Memorandum and all
amendments and supplements to any of the foregoing (including financial
statements), including the mailing and delivering of copies thereof to the
Initial Purchaser and persons designated by it in the quantities specified
herein, (ii) all costs and expenses related to the transfer and delivery of the
Series A Notes (including Series A Subsidiary Guarantees) to the Initial
Purchaser and pursuant to Exempt Resales, including any transfer or other taxes
payable thereon, (iii) all costs of printing or reproducing this Agreement, the
other Operative Documents and any other agreements or documents in connection
with the offering, purchase, sale or delivery of the Series A Notes (including
Series A Subsidiary Guarantees) , (iv) all expenses in connection with the
registration or qualification of the Series A Notes and the Series A Subsidiary
Guarantees for offer and sale under the securities or Blue Sky laws of the
several states and all costs of printing or reproducing any preliminary and
supplemental Blue Sky memoranda in connection therewith (including the filing
fees and customary fees and disbursements of counsel for the Initial Purchaser
in connection with such registration or qualification and memoranda relating
thereto), (v) the cost of printing certificates representing the Series A Notes
and the Series A Subsidiary Guarantees, (vi) all expenses and listing fees in
connection with the application for quotation of the Series A Notes in the
National Association of Securities Dealers, Inc. ("NASD") Automated Quotation
System - PORTAL ("PORTAL"), (vii) the fees and expenses of the Trustee and the
Trustee's counsel in connection with the Indenture, the Notes and the Subsidiary
Guarantees, (viii) the costs and charges of any transfer agent, registrar and/or
depositary (including DTC), (ix) any fees charged by rating agencies for the
rating of the Notes, (x) all costs and expenses of the Exchange Offer and any
Registration Statement, as set forth in the Registration Rights
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Agreement, and (xi) and all other costs and expenses incident to the
performance of the obligations of the Company and the Guarantors hereunder for
which provision is not otherwise made in this Section.
(j) To use commercially reasonable efforts to
effect the inclusion of the Series A Notes in PORTAL and to maintain the
listing of the Series A Notes on PORTAL for so long as the Series A Notes are
outstanding.
(k) To use their respective best efforts to
obtain the approval of DTC for "book-entry" transfer of the Notes, and to
comply with all of its agreements set forth in the representation letters of
the Company and the Guarantors to DTC relating to the approval of the Notes by
DTC for "book-entry" transfer.
(l) During the period beginning on the date
hereof and continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise transfer or dispose of any debt securities of the
Company or any Guarantor or any warrants, rights or options to purchase or
otherwise acquire debt securities of the Company or any Guarantor substantially
similar to the Notes and the Subsidiary Guarantees (other than (i) the Notes
and the Subsidiary Guarantees and (ii) commercial paper issued in the ordinary
course of business), without the prior written consent of the Initial
Purchaser.
(m) Not to sell, offer for sale or solicit offers
to buy or otherwise negotiate in respect of any security (as defined in the
Act) that would be integrated with the sale of the Series A Notes or the Series
A Subsidiary Guarantees to the Initial Purchaser or pursuant to Exempt Resales
in a manner that would require the registration of any such sale of the Series
A Notes or the Series A Subsidiary Guarantees under the Act.
(n) Not to voluntarily claim, and to actively
resist any attempts to claim, the benefit of any usury laws against the holders
of any Notes and the related Subsidiary Guarantees.
(o) To use their respective best efforts to cause
the Exchange Offer to be made in the appropriate form to permit Series B Notes
and Series B Subsidiary Guarantees registered pursuant to the Act to be offered
in exchange for the Series A Notes and the Series A Subsidiary Guarantees and
to comply with all applicable federal and state securities laws in connection
with the Exchange Offer.
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(p) To comply with all of its agreements set
forth in the Registration Rights Agreement.
(q) To use commercially reasonable efforts to do
and perform all things required or necessary to be done and performed under
this Agreement by it prior to the Closing Date and to satisfy all conditions
precedent to the delivery of the Series A Notes and the Series A Subsidiary
Guarantees.
6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY
AND THE GUARANTORS. As of the date hereof, each of the Company and the
Guarantors represents and warrants to, and agrees with, the Initial Purchaser
that:
(a) The Preliminary Offering Memorandum and the
Offering Memorandum, including documents incorporated by reference therein, do
not, and any supplement or amendment to them will not, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties contained in this paragraph (a) shall not apply
to statements in or omissions from the Preliminary Offering Memorandum or the
Offering Memorandum (or any supplement or amendment thereto) based upon
information relating to the Initial Purchaser furnished to the Company in
writing by the 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.
(b) Each of the Company and its subsidiaries has
been duly incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the corporate power
and authority to carry on its business as described in the Preliminary Offering
Memorandum and the Offering Memorandum and to own, lease and operate its
properties, and each is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the business, prospects, financial condition or
results of operations of the Company and its subsidiaries, taken as a whole, or
adversely effect the
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validity of this Agreement or other Operative Documents (collectively, a
"MATERIAL ADVERSE EFFECT").
(c) All outstanding shares of capital stock of
the Company have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights. After
giving effect to each of the transactions described under the caption "Offering
Memorandum Summary-The Recapitalization" of the Offering Memorandum
(collectively, the "TRANSACTIONS"), the Company will have an authorized
capitalization as set forth in the caption "Capitalization" of the Offering
Memorandum, and all of the capital stock of the Company will have been duly
authorized, validly issued and fully paid and will be non-assessable.
(d) The entities listed on Schedule A hereto are
and will be the only subsidiaries, direct or indirect, of the Company prior to
and immediately after giving effect to the Transactions. All of the
outstanding shares of capital stock of each of the Company's subsidiaries have
been duly authorized and validly issued and are fully paid and non-assessable,
and are owned by the Company, directly or indirectly through one or more
subsidiaries, free and clear of any security interest, claim, lien, encumbrance
or adverse interest of any nature (each, a "LIEN") other than as described in
the Offering Memorandum. Immediately after giving effect to the Transactions,
all of the outstanding shares of capital stock of each of the Company's
subsidiaries will have been duly authorized, validly issued and fully paid,
will be non-assessable, and will be owned by the Company, directly or
indirectly through one or more subsidiaries, free and clear of any Liens other
than as described in the Offering Memorandum.
(e) This Agreement has been duly authorized,
executed and delivered by the Company and each of the Guarantors, enforceable
against the Company in accordance with its terms except as (i) the enforcement
thereof may be limited by bankruptcy, insolvency, moratorium or similar laws
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(f) The Indenture has been duly authorized by the
Company and each of the Guarantors and, on the Closing Date, will have been
validly executed and delivered by the Company and each of the Guarantors. When
the Indenture has been duly executed and delivered by the Company and each of
the Guarantors and assuming due execution and delivery thereof by the Trustee,
the Indenture will be a valid and binding agreement of the Company and each
Guarantor, enforceable against the Company and each Guarantor in accordance
with its terms
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except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, moratorium or similar laws affecting creditors' rights generally
and (ii) rights of acceleration and the availability of equitable remedies may
be limited by equitable principles of general applicability. On the Closing
Date, the Indenture will conform in all material respects to the requirements
of the Trust Indenture Act of 1939, as amended (the "TIA" or "TRUST INDENTURE
ACT"), and the rules and regulations of the Commission applicable to an
indenture which is qualified thereunder.
(g) The Series A Notes have been duly authorized
and, on the Closing Date, will have been validly executed and delivered by the
Company. When the Series A Notes have been issued, executed and authenticated
in accordance with the provisions of the Indenture and delivered to and paid
for by the Initial Purchaser in accordance with the terms of this Agreement,
the Series A Notes will be entitled to the benefits of the Indenture and will
be valid and binding obligations of the Company, enforceable in accordance with
their terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability. On
the Closing Date, the Series A Notes will conform as to legal matters to the
description thereof contained in the Offering Memorandum.
(h) On the Closing Date, the Series B Notes will
have been duly authorized by the Company. When the Series B Notes are issued,
executed and authenticated in accordance with the terms of the Exchange Offer
and the Indenture, the Series B Notes will be entitled to the benefits of the
Indenture and will be the valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency, moratorium
or similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(i) The Series A Subsidiary Guarantee to be
endorsed on the Series A Notes by each Guarantor has been duly authorized by
such Guarantor and, on the Closing Date, will have been duly executed and
delivered by each such Guarantor. When the Series A Notes have been issued,
executed and authenticated in accordance with the Indenture and delivered to
and paid for by the Initial Purchaser in accordance with the terms of this
Agreement, the Series A Subsidiary Guarantee of each Guarantor endorsed thereon
will be entitled to the benefits of the Indenture and will be the valid and
binding obligation of such Guarantor, enforceable against such Guarantor in
accordance with its terms, except as (i) the enforceability thereof may be
limited by
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bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability. On
the Closing Date, the Series A Subsidiary Guarantees to be endorsed on the
Series A Notes will conform as to legal matters to the description thereof
contained in the Offering Memorandum.
(j) The Series B Subsidiary Guarantee to be
endorsed on the Series B Notes by each Guarantor has been duly authorized by
such Guarantor and, when issued, will have been duly executed and delivered by
each such Guarantor. When the Series B Notes have been issued, executed and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Series B Subsidiary Guarantee of each Guarantor endorsed thereon
will be entitled to the benefits of the Indenture and will be the valid and
binding obligation of such Guarantor, enforceable against such Guarantor in
accordance with its terms, except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability. When the Series B Notes are issued, authenticated and
delivered, the Series B Subsidiary Guarantees to be endorsed on the Series B
Notes will conform as to legal matters to the description thereof in the
Offering Memorandum.
(k) The Registration Rights Agreement has been
duly authorized by the Company and each of the Guarantors and, on the Closing
Date, will have been duly executed and delivered by the Company and each of the
Guarantors. When the Registration Rights Agreement has been duly executed and
delivered by each party thereto, the Registration Rights Agreement will be a
valid and binding agreement of the Company and each of the Guarantors,
enforceable against the Company and each Guarantor in accordance with its terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii)
rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability and (iii) the
enforceability of any indemnification or contribution provisions thereof may be
limited under applicable securities laws or the public policies underlying such
laws. On the Closing Date, the Registration Rights Agreement will conform as
to legal matters to the description thereof in the Offering Memorandum.
(l) The Company and each of its subsidiaries, as
applicable, have all requisite corporate power and authority to execute,
deliver and perform their obligations under (i) the Credit Agreement, dated
July 28, 1998 (the "CREDIT AGREEMENT"), by and among the
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Company, each of the Guarantors and NationsBank, N.A. and (ii) any and all
other agreements and instruments ancillary to or entered into in connection
with the transactions contemplated by the Credit Agreement (items (i) and (ii)
are referred to collectively as the "CREDIT DOCUMENTS"). Each of the Credit
Documents has been duly authorized by the Company and each of its subsidiaries
named therein and, when duly executed and delivered by the Company and each of
its subsidiaries named therein, will be the valid and legally binding
obligation of the Company and each of its subsidiaries named therein,
enforceable against each of them in accordance with its terms, subject, as to
enforcement, to bankruptcy, reorganization, insolvency, moratorium and other
similar laws relating to or affecting creditors' rights generally and to
general principles of equity. The Company will have at least $8.0 million of
revolving credit borrowings available under the Credit Agreement after giving
effect to all transactions contemplated by the Operative Documents and after
giving effect to any borrowing base requirements thereunder. All
representations and warranties to be made by the Company and the Guarantors
under any of the Credit Documents are true and correct in all material respects
as of the date hereof.
(m) The Company has all requisite corporate power
and authority to execute, deliver and perform its obligations under (i) the
agreement and plan of merger, dated February 12, 1998 and amended June 17, 1998
(the "MERGER AGREEMENT"), by and between Green I Acquisition Corp. and the
Company; and (ii) any and all other agreements and side letters ancillary to or
entered into in connection with the transaction contemplated by the Merger
Agreement (items (i) and (ii) are referred to collectively as the "MERGER
DOCUMENTS"). Each of the Merger Documents has been duly authorized, executed
and delivered by the Company and constitutes the valid and legally binding
obligation of the Company, enforceable against it in accordance with its terms,
subject, as to enforcement, to bankruptcy, reorganization, insolvency and other
similar laws relating to or affecting creditors' rights generally and to
general principles of equity. All representations and warranties made by the
Company under any of the Merger Documents are true and correct in all material
respects as of the date hereof.
(n) Neither the Company nor any of its
subsidiaries is, and after giving effect to the Transactions will be, in
violation of its respective charter or by-laws, each as amended to date, or in
default in the performance of any obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other agreement
or instrument that is material to the Company and its subsidiaries, taken as a
whole, to which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries or their respective property is bound.
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(o) The execution, delivery and performance of
this Agreement and the other Operative Documents by the Company and each of the
Guarantors, compliance by the Company and each of the Guarantors with all
provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states), or any other person, (ii)
conflict with or constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws, each as amended to date, of the Company
or any of its subsidiaries or any indenture, loan agreement, mortgage, lease or
other agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or their
respective property is bound (except to the extent any such conflict or breach,
singly or in the aggregate, would not reasonably be expected to result in a
Material Adverse Effect), (iii) violate or conflict with any applicable law or
any rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company, any of its
subsidiaries or their respective property (except to the extent any such
violation or conflict, singly or in the aggregate, would not have a Material
Adverse Effect), (iv) result in the imposition or creation of (or the
obligation to create or impose) a Lien under, any agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or their respective property is bound (except to the
extent any such imposition or creation, singly or in the aggregate, would not
have a Material Adverse Effect), or (v) result in the termination, suspension
or revocation of any Authorization (as defined below) of the Company or any of
its subsidiaries or result in any other impairment of the rights of the holder
of any such Authorization.
(p) Any applicable waiting period under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976, as amended, has expired or
been terminated in accordance with the provisions thereof without any action by
the United States Department of Justice or Federal Trade Commission to prevent
consummation of any of the transactions contemplated in the Merger Documents.
(q) There are no legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is or could be a party or to which any of their respective
property is or could be subject, which might result, singly or in the
aggregate, in a Material Adverse Effect.
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(r) Neither the Company nor any of its
subsidiaries has violated and, immediately after giving effect to the
Transactions, will be in violation of 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 violation could reasonably be
expected to have a Material Adverse Effect. There is no alleged liability
attributable to the Company, nor, to the best knowledge of the Company, any
reasonable basis for liability (including, without limitation, alleged or
potential liability for investigatory costs, cleanup costs, governmental
response costs, natural resource damages, property damages, personal injuries
or penalties) of the Company or any of its subsidiaries arising out of, based
on or resulting from (A) the presence or release into the environment of any
Hazardous Material (as defined below) 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.
(s) There is (A) no unfair labor practice
complaint pending against the Company or any of its subsidiaries nor 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
grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Company or any of its
subsidiaries or threatened against any of them, (B) no strike, labor dispute,
slowdown or stoppage pending against the Company or any of its subsidiaries nor
threatened against the Company or any of its subsidiaries and (C) no union
representation question existing with respect to the employees of the Company
or any of its subsidiaries. No collective bargaining organizing activities are
taking place with respect to the Company or any of its subsidiaries, except
those activities that could not reasonably be expected to have a Material
Adverse Effect. None of the Company or any of its subsidiaries 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
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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.
(t) Neither the Company nor any of its
subsidiaries has, to the best of their respective knowledge, violated any
provisions of the Foreign Corrupt Practice Act or the rules and regulations
promulgated thereunder, except for such violations which, singly or in the
aggregate, would not have a Material Adverse Effect.
(u) Each of the Company and its subsidiaries has
and, after giving effect to the Transaction, will have such foreign, federal,
state or local permits, licenses, consents, exemptions, franchises,
authorizations and other approvals (each, an "AUTHORIZATION") of, and has made
all filings with and notices to, all governmental or regulatory authorities and
self-regulatory organizations and all courts and other tribunals, including
without limitation, under any applicable Environmental Laws, as are necessary
to own, lease, license and operate its respective properties and to conduct its
business, except where the failure to have any such Authorization or to make
any such filing or notice would not, singly or in the aggregate, have a
Material Adverse Effect. To the best of their respective knowledge, each such
Authorization is and, after giving effect to the Transactions, will be valid
and in full force and effect and each of the Company and its subsidiaries is in
compliance with all the terms and conditions thereof and with the rules and
regulations of the authorities and governing bodies having jurisdiction with
respect thereto; and no event has occurred and, after giving effect to the
Transactions, will occur (including, without limitation, the receipt of any
notice from any authority or governing body) which allows or, after notice or
lapse of time or both, would allow, revocation, suspension or termination of
any such Authorization or results or, after notice or lapse of time or both,
would result in any other impairment of the rights of the holder of any such
Authorization; and such Authorizations contain no restrictions that are
burdensome to the Company or any of its subsidiaries; except where such failure
to be valid and in full force and effect or to be in compliance, the occurrence
of any such event or the presence of any such restriction would not, singly or
in the aggregate, have a Material Adverse Effect.
(v) The Company and its subsidiaries own or
possess, or can acquire on reasonable terms, all patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks and trade names ("INTELLECTUAL
PROPERTY") currently employed by them in connection with the business now
operated by them
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except where the failure to own or possess or otherwise be able to acquire such
intellectual property would not, singly or in the aggregate, have a Material
Adverse Effect; and neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted rights of
others with respect to any of such intellectual property which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Effect.
(w) The Company and each of its subsidiaries are
insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the reasonable
judgment of the Company's management for a Company of like size and operation;
and neither the Company nor any of its subsidiaries (i) has received notice
from any insurer or agent of such insurer that substantial capital improvements
or other material expenditures will have to be made in order to continue such
insurance or (ii) has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers at a cost that would not have a Material
Adverse Effect.
(x) The accountants, KPMG Peat Marwick LLP, who
have certified the financial statements and supporting schedules included in
the Preliminary Offering Memorandum and the Offering Memorandum are independent
public accountants with respect to the Company and the Guarantors, as required
by the Act and the Exchange Act. The historical financial statements, together
with related schedules and notes, set forth in the Preliminary Offering
Memorandum and the Offering Memorandum comply as to form in all material
respects with the requirements applicable to registration statements on Form
S-1 under the Act.
(y) Except as disclosed in the Offering
Memorandum, no direct or indirect relationship exists between or among the
Company or any of its subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of its
subsidiaries on the other hand, which would be required by the Act to be
described in the Offering Memorandum if the Offering Memorandum were a
prospectus included in a registration statement on Form S-1 filed with the
Commission.
(z) The historical financial statements, together
with related schedules and notes forming part of the Offering Memorandum (and
any amendment or supplement thereto), present fairly the consolidated financial
position, results of operations and changes in financial position of the
Company and its subsidiaries on the basis stated in the Offering
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Memorandum at the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; and the other
financial and statistical information and data set forth in the Offering
Memorandum (and any amendment or supplement thereto) are, in all material
respects, accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company.
(aa) The pro forma financial information included
in the Preliminary Offering Memorandum and the Offering Memorandum has been
prepared on a basis consistent with the historical financial statements of the
Company and its subsidiaries and gives effect to assumptions used in the
preparation thereof on a reasonable basis and in good faith and present fairly
the historical and proposed transactions contemplated by the Preliminary
Offering Memorandum and the Offering Memorandum; and such pro forma financial
information complies as to form in all material respects with the requirements
applicable to pro forma financial information included in registration
statements on Form S-1 under the Act. The adjusted and other pro forma
financial and statistical information and data included in the Offering
Memorandum are, in all material respects, fairly and accurately presented.
(bb) All material tax returns required to be filed
by the Company and each of its subsidiaries in any jurisdiction have been
filed, other than those filings being contested in good faith, and all material
taxes, including withholding taxes, penalties and interest, assessments, fees
and other charges due pursuant to such returns or pursuant to any assessment
received by the Company or any of its subsidiaries have been paid, other than
those being contested in good faith and for which adequate reserves have been
provided.
(cc) All indebtedness of the Company and the
Guarantors that will be repaid with the proceeds of the issuance and sale of
the Series A Notes was incurred, and the indebtedness by the Series A Notes is
being incurred, for proper purposes and in good faith and each of the Company
and the Guarantors was, at the time of the incurrence of such indebtedness that
will be repaid with the proceeds of the issuance and sale of the Series A
Notes, and will, on a consolidated basis, be on the Closing Date (after giving
effect to the application of the proceeds from the issuance of the Series A
Notes) solvent, and had at the time of the incurrence of such indebtedness that
will be repaid with the proceeds of the issuance and sale of the Series A Notes
and will, on a consolidated basis, have on the Closing Date (after giving
effect to the application of the proceeds from the issuance of the Series A
Noes) sufficient capital for carrying on their
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respective business and were, at the time of the incurrence of such
indebtedness that will be repaid with the proceeds of the issuance and sale of
the Series A Notes, and will be on the Closing Date (after giving effect to the
application of the proceeds from the issuance of the Series A Notes) able to
pay their respective debts as they mature.
(dd) The Company is not and, after giving effect
to the offering and sale of the Series A Notes (including Series A Subsidiary
Guarantees) and the application of the net proceeds thereof and the
Transactions as described in the Offering Memorandum, will not be, an
"investment company," as such term is defined in the Investment Company Act of
1940, as amended.
(ee) There are and, after giving effect to the
Transactions, will be no contracts, agreements or understandings between the
Company or any Guarantor and any person granting such person the right to
require the Company or such Guarantor to file a registration statement under
the Act with respect to any securities of the Company or such Guarantor or to
require the Company or such Guarantor to include such securities with the Notes
and Subsidiary Guarantees registered pursuant to any Registration Statement.
(ff) Neither the Company nor any of its
subsidiaries nor any agent thereof acting on the behalf of them has taken, and
none of them will take, any action that might cause this Agreement or the other
Operative Documents, or any action taken pursuant hereto or thereto, including
but not limited to the issuance or sale of the Series A Notes, to violate
Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or
Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal
Reserve System.
(gg) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act (i) has imposed (or has informed the Company or any Guarantor that it is
considering imposing) any condition (financial or otherwise) on the Company's
or any Guarantor's retaining any rating assigned to the Company or any
Guarantor, any securities of the Company or any Guarantor or (ii) has indicated
to the Company or any Guarantor that it is considering (a) the downgrading,
suspension, or withdrawal of, or any review for a possible change that does not
indicate the direction of the possible change in, any rating so assigned or (b)
any change in the outlook for any rating of the Company, any Guarantor or any
securities of the Company or any Guarantor.
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(hh) Since the respective dates as of which
information is given in the Offering Memorandum other than as set forth in the
Offering Memorandum (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), (i) there has not occurred any
material adverse change or any development involving a prospective material
adverse change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its subsidiaries, taken
as a whole, (ii) there has not been any material adverse change or any
development involving a prospective material adverse change in the capital
stock or in the long-term debt of the Company or any of its subsidiaries and
(iii) neither the Company nor any of its subsidiaries has incurred any material
liability or obligation, direct or contingent.
(ii) Each of the Preliminary Offering Memorandum
and the Offering Memorandum, as of its date, contains all the information
specified in, and meeting the requirements of, Rule 144A(d)(4) under the Act.
(jj) When the Series A Notes and the Series A
Subsidiary Guarantees are issued and delivered pursuant to this Agreement,
neither the Series A Notes nor the Series A Subsidiary Guarantees will be of
the same class (within the meaning of Rule 144A under the Act) as any security
of the Company or the Guarantors that is listed on a national securities
exchange registered under Section 6 of the Exchange Act or that is quoted in a
United States automated inter-dealer quotation system.
(kk) No form of general solicitation or general
advertising (as defined in Regulation D under the Act) was used by the Company,
the Guarantors or any of their respective representatives (other than the
Initial Purchaser, as to whom the Company and the Guarantors make no
representation) in connection with the offer and sale of the Series A Notes
(including Series A Subsidiary Guarantees) contemplated hereby, including, but
not limited to, articles, notices or other communications published in any
newspaper, magazine, or similar medium or broadcast over television or radio,
or any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. No securities of the same class as the
Series A Notes (including Series A Subsidiary Guarantees) have been issued and
sold by the Company within the six-month period immediately prior to the date
hereof.
(ll) None of the Company, the Guarantors nor
any of their respective affiliates or any person acting on its or their behalf
(other than the Initial Purchaser, as to whom the Company and the Guarantors
make no representation) has engaged or will engage in
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any directed selling efforts within the meaning of Regulation S under the Act
("REGULATION S") with respect to the Series A Notes or the Subsidiary
Guarantees.
(mm) The Series A Notes offered and sold in
reliance on Regulation S have been and will be offered and sold only in
offshore transactions.
(nn) The sale of the Series A Notes pursuant to
Regulation S is not part of a plan or scheme to evade the registration
provisions of the Act.
(oo) Prior to the effectiveness of any
Registration Statement, the Indenture is not required to be qualified under the
TIA.
(pp) No registration under the Act of the Series A
Notes or the Series A Subsidiary Guarantees is required for the sale of the
Series A Notes (including the Series A Subsidiary Guarantees) to the Initial
Purchaser as contemplated hereby or for the Exempt Resales assuming the
accuracy of the Initial Purchaser's representations and warranties and
agreements set forth in Section 7 hereof.
(qq) Each certificate signed by any officer of the
Company or any Guarantor and delivered to the Initial Purchaser or the counsel
for the Initial Purchaser shall be deemed to be a representation and warranty
by the Company or such Guarantor to the Initial Purchaser as to the matters
covered thereby.
The Company acknowledges that the Initial Purchaser and, for
purposes of the opinions to be delivered to the Initial Purchaser pursuant to
Section 9 hereof, each of the counsel to the Company and the Guarantors and
counsel to the Initial Purchaser will rely upon the accuracy and truth of the
foregoing representations and hereby consents to such reliance.
7. INITIAL PURCHASER'S REPRESENTATIONS AND WARRANTIES. The
Initial Purchaser represents and warrants to, and agrees with, the Company and
the Guarantors:
(a) The Initial Purchaser is a QIB with such
knowledge and experience in financial and business matters as is necessary in
order to evaluate the merits and risks of an investment in the Series A Notes
(including Series A Subsidiary Guarantees).
(b) The Initial Purchaser (A) is not acquiring
the Series A Notes with a view to any distribution thereof or with any present
intention of offering or selling any of the
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Series A Notes (including Series A Subsidiary Guarantees) in a transaction that
would violate the Act or the securities laws of any state of the United States
or any other applicable jurisdiction and (B) will be reoffering and reselling
the Series A Notes (including Series A Subsidiary Guarantees) only (x) to QIBs
in reliance on the exemption from the registration requirements of the Act
provided by Rule 144A and (y) in offshore transactions in reliance upon
Regulation S under the Act.
(c) The Initial Purchaser agrees that no form of
general solicitation or general advertising (within the meaning of Regulation D
under the Act) has been or will be used by such Initial Purchaser or any of its
representatives in connection with the offer and sale of the Series A Notes
(including Series A Subsidiary Guarantees) pursuant hereto, 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.
(d) The Initial Purchaser agrees that, in
connection with Exempt Resales, such Initial Purchaser will solicit offers to
buy the Series A Notes only from, and will offer to sell the Series A Notes
only to, Eligible Purchasers. Each Initial Purchaser further agrees that it
will offer to sell the Series A Notes (including Series A Subsidiary
Guarantees) only to, and will solicit offers to buy the Series A Notes
(including Series A Subsidiary Guarantees) only from (A) Eligible Purchasers
that the Initial Purchaser reasonably believes are QIBs and (C) Regulation S
Purchasers, in each case, that agree that (x) the Series A Notes purchased by
them may be resold, pledged or otherwise transferred within the time period
referred to under Rule 144(k) (taking into account the provisions of Rule
144(d) under the Act, if applicable) under the Act, as in effect on the date of
the transfer of such Series A Notes, only (I) to the Company or any of its
subsidiaries, (II) to a person whom the seller reasonably believes is a QIB
purchasing for its own account or for the account of a QIB in a transaction
meeting the requirements of Rule 144A under the Act, (III) in an offshore
transaction (as defined in Rule 902 under the Act) meeting the requirements of
Rule 904 of the Act, (IV) in a transaction meeting the requirements of Rule 144
under the Act, (V) to an Accredited Investor that, prior to such transfer,
furnishes the Trustee a signed letter containing certain representations and
agreements relating to the registration or transfer of such Series A Note (the
form of which may be obtained from the Trustee) and, if such transfer is in
respect of an aggregate principal amount of Series A Notes less than $250,000,
an opinion of counsel acceptable to the Company that such transfer is in
compliance with the Act, (VI) in accordance with another exemption from the
registration requirements of the Act (and based upon an opinion of counsel
acceptable to the Company) or (VII) pursuant to an effective
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registration statement and, in each case, in accordance with the applicable
securities laws of any state of the United States or any other applicable
jurisdiction and (y) they will deliver to each person to whom such Series A
Notes (including Series A Subsidiary Guarantees) or an interest therein is
transferred a notice substantially to the effect of the foregoing.
The Initial Purchaser acknowledges that the Company and
the Guarantors and, for purposes of the opinions to be delivered to the Initial
Purchaser pursuant to Section 9 hereof, each of the counsel to the Company and
the Guarantors and the counsel to the Initial Purchaser will rely upon the
accuracy and truth of the foregoing representations and the Initial Purchaser
hereby consents to such reliance.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and each Guarantor agree, jointly
and severally, to indemnify and hold harmless the Initial Purchaser, its
directors, its officers and each person, if any, who controls such Initial
Purchaser within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages, liabilities
and judgments (including, without limitation, any legal or other expenses
incurred in connection with investigating or defending any matter, including
any action, that could give rise to any such losses, claims, damages,
liabilities or judgments) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Offering Memorandum (or any
amendment or supplement thereto), the Preliminary Offering Memorandum or any
Rule 144A Information provided by the Company or any Guarantor to any holder or
prospective purchaser of Series A Notes pursuant to Section 5(h) or caused by
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or judgments are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to the Initial Purchaser furnished in
writing to the Company by such Initial Purchaser; provided, however, that the
foregoing indemnity agreement with respect to any Preliminary Offering
Memorandum shall not inure to the benefit of the Initial Purchaser if it failed
to deliver a Final Offering Memorandum (as then amended or supplemented,
provided by the Company to the Initial Purchaser in the requisite quantity and
on a timely basis to permit proper delivery on or prior to the Closing Date) to
the person asserting any losses, claims, damages and liabilities and judgments
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Offering Memorandum, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the
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statements therein not misleading, if such material misstatement or omission or
alleged material misstatement or omission was cured in the Final Offering
Memorandum.
(b) The Initial Purchaser agrees to indemnify and
hold harmless the Company and the Guarantors, and their respective directors
and officers and each person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) the Company or the
Guarantors, to the same extent as the foregoing indemnity from the Company and
the Guarantors to the Initial Purchaser but only with reference to information
relating to the Initial Purchaser furnished in writing to the Company by the
Initial Purchaser expressly for use in the Preliminary Offering Memorandum or
the Offering Memorandum. The Company acknowledges that the statement with
respect to the offering of the Series A Notes set forth in the first sentence
of the third paragraph under the caption "Plan of Distribution" in the Offing
Memorandum constitutes the only information relating to the Initial Purchaser
furnished to the Company in writing by or behalf of the Initial Purchaser
expressly for use in the Offering Memorandum.
(c) In case any action shall be commenced
involving any person in respect of which indemnity may be sought pursuant to
Section 8(a) or 8(b) (the "INDEMNIFIED PARTY"), the indemnified party shall
promptly notify the person against whom such indemnity may be sought (the
"INDEMNIFYING PARTY") in writing and the indemnifying party shall assume the
defense of such action, including the employment of counsel reasonably
satisfactory to the indemnified party and the payment of all fees and expenses
of such counsel, as incurred (except that in the case of any action in respect
of which indemnity may be sought pursuant to both Sections 8(a) and 8(b), the
Initial Purchaser shall not be required to assume the defense of such action
pursuant to this Section 8(c), but may employ separate counsel and participate
in the defense thereof, but the fees and expenses of such counsel, except as
provided below, shall be at the expense of the Initial Purchaser). Any
indemnified party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing
by the indemnifying party, (ii) the indemnifying party shall have failed after
due notice to assume the defense of such action or employ counsel reasonably
satisfactory to the indemnified party or (iii) the named parties to any such
action (including any impleaded parties) include both the indemnified party and
the indemnifying party, and the indemnified party shall have been advised by
such counsel that there may be one or more legal defenses available to it which
are different from or additional to those available to the indemnifying party
(in which case the indemnifying party shall not have the right
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to assume the defense of such action on behalf of the indemnified party). In
any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) for all indemnified parties and all such
fees and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Initial Purchaser, in the case of the parties
indemnified pursuant to Section 8(a), and by the Company, in the case of
parties indemnified pursuant to Section 8(b). The indemnifying party shall
indemnify and hold harmless the indemnified party from and against any and all
losses, claims, damages, liabilities and judgments by reason of any settlement
of any action (i) effected with its written consent or (ii) effected without
its written consent if the settlement is entered into more than twenty (20)
business days after the indemnifying party shall have received a request from
the indemnified party for reimbursement for the fees and expenses of counsel
(in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims
that are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided
for in this Section 8 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages, liabilities or judgments referred to
therein, then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities and judgments (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and the Guarantors, on the one hand, and the Initial Purchaser, on
the other hand, from the offering of the Series A Notes or (ii) if the
allocation provided by clause 8(d)(i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause 8(d)(i) above but also the relative fault of the Company
and the Guarantors, on the one hand, and the Initial Purchaser, on the other
hand, in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other
relevant
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equitable considerations. The relative benefits received by the Company and
the Guarantors, on the one hand and the Initial Purchaser, on the other hand,
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Series A Notes (after underwriting discounts and commissions,
but before deducting expenses) received by the Company, and the total discounts
and commissions received by the Initial Purchaser bear to the total price to
investors of the Series A Notes, in each case as set forth in the table on the
cover page of the Offering Memorandum. The relative fault of the Company and
the Guarantors, on the one hand, and the 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 or the
Guarantors, on the one hand, or the Initial Purchaser, on the other hand, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Guarantors, and the Initial Purchaser
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 account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or
judgments referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
incurred by such indemnified party in connection with investigating or defending
any matter, including any action, that could have given rise to such losses,
claims, damages, liabilities or judgments. Notwithstanding the provisions of
this Section 8, the Initial Purchaser shall not be required to contribute any
amount in excess of the amount by which the total discounts and commissions
received by such Initial Purchaser exceed the amount of any damages which the
Initial Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The remedies provided for in this Section 8
are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
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9. CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS. The
obligations of the Initial Purchaser to purchase the Series A Notes (including
Series A Subsidiary Guarantees) under this Agreement are subject to the
satisfaction of each of the following conditions:
(a) All the representations and warranties of the
Company and the Guarantors contained in this Agreement shall be true and
correct on the Closing Date with the same force and effect as if made on and as
of the Closing Date.
(b) On or after the date hereof, (i) there shall
not have occurred any downgrading, suspension or withdrawal of, nor shall any
notice have been given of any potential or intended downgrading, suspension or
withdrawal of, or of any review (or of any potential or intended review) for a
possible change that does not indicate the direction of the possible change in,
any rating of the Company or any Guarantor or any securities of the Company or
any Guarantor (including, without limitation, the placing of any of the
foregoing ratings on credit watch with negative or developing implications or
under review with an uncertain direction) by any "nationally recognized
statistical rating organization" as such term is defined for purposes of Rule
436(g)(2) under the Act, (ii) there shall not have occurred any change, nor
shall any notice have been given of any potential or intended change, in the
outlook for any rating of the Company or any Guarantor or any securities of the
Company or any Guarantor by any such rating organization and (iii) no such
rating organization shall have given notice that it has assigned (or is
considering assigning) a lower rating to the Notes than that on which the Notes
were marketed.
(c) Since the respective dates as of which
information is given in the Offering Memorandum other than as set forth in the
Offering Memorandum (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), (i) there shall not have occurred
any change or any development involving a prospective change in the condition,
financial or otherwise, or the earnings, business, management or operations of
the Company and its subsidiaries, taken as a whole, (ii) there shall not have
been any change or any development involving a prospective change in the
capital stock or in the long-term debt of the Company or any of its
subsidiaries and (iii) neither the Company nor any of its subsidiaries shall
have incurred any liability or obligation, direct or contingent, the effect of
which, in any such case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in
your judgment, is material and adverse and, in your judgment, makes it
impracticable to market the Series A Notes on the terms and in the manner
contemplated in the Offering Memorandum.
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(d) You shall have received on the Closing Date a
certificate dated the Closing Date, signed by the Chief Executive Officer and
the Chief Financial Officer of the Company and each of the Guarantors,
confirming the matters set forth in Sections 6(ii), 9(a), and 9(b) and stating
that each of the Company and the Guarantors has complied with all the
agreements and satisfied all of the conditions herein contained and required to
be complied with or satisfied on or prior to the Closing Date.
(e) You shall have received on the Closing Date
an opinion (satisfactory to you and counsel for the Initial Purchaser), dated
the Closing Date, of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Company and
the Guarantors, to the effect that:
(i) each of the Company and its
subsidiaries has been duly incorporated, is validly
existing as a corporation in good standing under the
laws of the State of Delaware and has the corporate
power and authority to carry on its business as
described in the Offering Memorandum and to own,
lease and operate its properties;
(ii) each of the Company and its
subsidiaries is duly qualified and is in good
standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of
its business or its ownership or leasing of property
requires such qualification, except where the failure
to be so qualified would not have a Material Adverse
Effect;
(iii) immediately after giving effect to
the Transactions, all the outstanding shares of
capital stock of the Company have been duly
authorized and validly issued and are fully paid and
non-assessable and are not subject to any preemptive
or similar rights;
(iv) immediately after giving effect to
the Transactions, all of the outstanding shares of
capital stock of each of the Company's subsidiaries
have been duly authorized and validly issued and are
fully paid and non-assessable, and are owned by the
Company, free and clear of any Lien;
(v) the Series A Notes have been duly
authorized by the Company and, when executed and
authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the
Initial Purchaser in accordance with the terms of
this Agreement, will be entitled
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to the benefits of the Indenture and will be valid
and binding obligations of the Company, enforceable
in accordance with their terms except as (x) the
enforceability thereof may be limited by bankruptcy,
insolvency fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors'
rights generally and (y) rights of acceleration and
the availability of equitable remedies may be limited
by equitable principles of general applicability;
(vi) the Series A Subsidiary Guarantees
to be endorsed on the Series A Notes by the
Guarantors have been duly authorized by each of the
Guarantors and, when the Series A Notes are executed
and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the
Initial Purchaser in accordance with the terms of
this Agreement, the Series A Subsidiary Guarantees
endorsed thereon will be entitled to the benefits of
the Indenture and will be valid and binding
obligations of the Guarantors, enforceable in
accordance with their terms except as (x) the
enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors'
rights generally and (y) rights of acceleration and
the availability of equitable remedies may be limited
by equitable principles of general applicability;
(vii) the Series B Notes have been duly
authorized by the Company and, when the Series B
Notes are executed and authenticated in accordance
with the provisions of the Exchange Offer and the
Indenture, the Series B Notes will be entitled to the
benefits of the Indenture and will be valid and
binding obligations of the Company, enforceable in
accordance with their terms except as (x) the
enforceability thereof may be limited by bankruptcy,
insolvency fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors'
rights generally and (y) rights of acceleration and
the availability of equitable remedies may be limited
by equitable principles of general applicability;
(viii) the Series B Subsidiary Guarantees
to be endorsed on the Series B Notes by the
Guarantors have been duly authorized by each of the
Guarantors and, when the Series B Notes are executed
and authenticated in
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accordance with the provisions of the Exchange Offer
and the Indenture, the Series B Subsidiary Guarantees
endorsed thereon will be entitled to the benefits of
the Indenture and will be valid and binding
obligations of the Guarantors, enforceable in
accordance with their terms except as (x) the
enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors'
rights generally and (y) rights of acceleration and
the availability of equitable remedies may be limited
by equitable principles of general applicability;
(ix) each of the Merger Documents has
been duly authorized, executed and delivered by the
Company and Green I Acquisition Corp. and constitutes
the legally valid and legally binding obligation of
the Company and Green I Acquisition Corp.,
enforceable against each of them in accordance with
its terms, subject, as to enforcement, to bankruptcy,
reorganization, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally
and to general principles of equity;
(x) the Indenture has been duly
authorized, executed and delivered by the Company and
each Guarantor and is a valid and binding agreement
of the Company and each Guarantor, enforceable
against the Company and each Guarantor in accordance
with its terms except as (x) the enforceability
thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or
similar laws affecting creditors' rights generally
and (y) rights of acceleration and the availability
of equitable remedies may be limited by equitable
principles of general applicability;
(xi) this Agreement has been duly
authorized, executed and delivered by the Company and
the Guarantors;
(xii) the Registration Rights Agreement
has been duly authorized, executed and delivered by
the Company and the Guarantors and is a valid and
binding agreement of the Company and each Guarantor,
enforceable against the Company and each Guarantor in
accordance with
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its terms, except as (x) the enforceability thereof
may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar
laws affecting creditors' rights generally and (y)
rights of acceleration and the availability of
equitable remedies may be limited by equitable
principles of general applicability;
(xiii) each of the Credit Documents has
been duly authorized by the Company and the
Guarantors and, when duly executed and delivered by
the Company and the Guarantors will be the valid and
legally binding obligation of the Company and the
Guarantors, enforceable against each of them in
accordance with its terms except as (x) the
enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws affecting creditors'
rights generally and (y) rights of acceleration and
the availability of equitable remedies may be limited
by equitable principles of general applicability;
(xiv) the execution, delivery and
performance of this Agreement and the other Operative
Documents by the Company and each of the Guarantors,
the compliance by the Company and each of the
Guarantors with all provisions hereof and thereof and
the consummation of the transactions contemplated
hereby and thereby will not require any consent,
approval, authorization or other order of, or
qualification with, any court or governmental body or
agency (except such as may be required under the
securities or Blue Sky laws of the various states);
(xv) the statements under the captions
"Offering Memorandum Summary-The Recapitalization,"
"Business-General Overview," "Business-Specialty
Chemicals-Selected Recent Contracts,"
"Business-Permits," "Business-Environmental
Regulation and Safety Matters," "Business-Insurance
Matters," "Business-Legal Proceedings," "Certain
Transactions," "Description of the Revolving Credit
Facility," "Description of the Notes," "Exchange
Offer; Registration Rights," "Certain U.S. Federal
Tax Considerations for Non-U.S. Holders" and "Plan of
Distribution" in the Offering Memorandum, insofar as
such statements constitute a summary of the legal
matters, documents or
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proceedings referred to therein, fairly present in
all material respects such legal matters, documents
and proceedings;
(xvi) the Company is not and, after giving
effect to the offering and sale of the Series A Notes
(including Series A Subsidiary Guarantees) and the
application of the net proceeds thereof as described
in the Offering Memorandum, will not be, an
"investment company" as such term is defined in the
Investment Company Act of 1940, as amended;
(xvii) the Indenture complies as to form in
all material respects with the requirements of the
TIA, and the rules and regulations of the Commission
applicable to an indenture which is qualified
thereunder, and it is not necessary in connection
with the offer, sale and delivery of the Series A
Notes to the Initial Purchaser in the manner
contemplated by the Agreement or in connection with
the Exempt Resales to qualify the Indenture under the
TIA;
(xviii) neither the Company nor any of its
subsidiaries is in violation of its respective
charter or by-laws, except where such violations,
singly or in the aggregate, would not have a Material
Adverse Effect;
(xix) the execution, delivery and
performance of this Agreement and the other Operative
Documents by the Company and each of the Guarantors,
the compliance by the Company and each of the
Guarantors with all provisions hereof and thereof and
the consummation of the transactions contemplated
hereby and thereby will not (i) conflict with or
constitute a breach of any of the terms or provisions
of, or a default under, the charter or by-laws of the
Company or any of its subsidiaries or any indenture,
loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and its
subsidiaries, taken as a whole, to which the Company
or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or their
respective property is bound, except where such
conflicts or breach, singly or in the aggregate,
would not have a Material Adverse Effect, (ii)
violate or conflict with any applicable law or any
rule, regulation, judgment, order or decree of any
court or any governmental body or agency having
jurisdiction over the
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Company, any of its subsidiaries or their respective
property, except where such violations or conflicts,
singly or in the aggregate, would not have a Material
Adverse Effect, (iii) result in the imposition or
creation of (or the obligation to create or impose) a
Lien under, any agreement or instrument to which the
Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or their
respective property is bound, or (iv) result in the
termination, suspension or revocation of any
Authorization of the Company or any of its
subsidiaries or result in any other impairment of the
rights of the holder of any such Authorization,
except where such terminations, suspensions or
revocations, singly or in the aggregate, would not
have a Material Adverse Effect;
(xx) none of the Company and its
subsidiaries has received any notice of any failure
to be in compliance with any applicable Environmental
Laws (including the receipt of any notice from any
authority or governing body) except where such
failure to be in compliance would not, singly or in
the aggregate, have a Material Adverse Effect;
(xxi) except as described in the Offering
Memorandum, there are no contracts, agreements or
understandings, other than those described in the
Offering Memorandum, between the Company or any
Guarantor and any person granting such person the
right to require the Company or such Guarantor to
file a registration statement under the Act with
respect to any securities of the Company or such
Guarantor or to require the Company or such Guarantor
to include such securities with the Notes and
Subsidiary Guarantees registered pursuant to any
Registration Statement; and
(xxii) no registration under the Act of the
Series A Notes is required for the sale of the Series
A Notes to the Initial Purchaser as contemplated by
the Agreement or for the Exempt Resales assuming that
(i) the Initial Purchaser is a QIB, (ii) the accuracy
of, and compliance with, the Initial Purchaser's
representations and agreements contained in Section 7
of this Agreement and the accuracy of the
representations of the Company and the Guarantors set
forth in Section 5(h) of this Agreement.
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In addition, such counsel shall also state
that such counsel has participated in conference with
officers and other representatives of the Company,
its auditors, and the Initial Purchaser's
representatives at which the contents of the Offering
Memorandum and related matters were discussed. Based
upon such participation and review, and relying as to
materiality in part upon the factual statements of
officers and other representatives of the Company,
such counsel shall advise the Initial Purchaser that
no facts have come to such counsel's attention that
have caused such counsel to believe that the Offering
Memorandum (except for the financial statements,
schedules and related data and other financial data,
as to which we have not been asked to comment), as of
the date of such Offering Memorandum and as of the
date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading. Such
counsel may state that, because the primary purpose
of such counsel's engagement was not to confirm
factual matters or financial or accounting matters
and because of the wholly or partially non-legal
character of many of the statements contained in the
Offering Memorandum (except to the extent expressly
set forth above), such counsel has not independently
verified the accuracy, completeness or fairness of
such statements (except as aforesaid). Such counsel
may also state that, without limiting the foregoing,
such counsel assumes no responsibility for, has not
independently verified and has not been asked to
comment on the accuracy, completeness or fairness of
the financial statements, schedules and other
financial data included in the Offering Memorandum,
and such counsel has not examined the accounting,
financial or other records from which such financial
statements, schedules and other financial or
statistical data and information were derived. Such
counsel may also note that, although certain portions
of the Offering Memorandum (including financial
statements and related data) have been included
therein on the authority of "experts" within the
meaning of the Securities Act, such counsel is not an
expert with respect to any portion of the Offering
Memorandum, including, without limitation, such
financial statements and related data and other
financial or accounting data included therein or
omitted therefrom.
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The opinion of such counsel described in Section 9(e) above
shall be rendered to you at the request of the Company and the Guarantors and
shall so state therein. In rendering such opinions in accordance with Sections
9(e)(xiv), 9(e)(xv), 9(e)(xviii), 9(e) (xx) and 9(e)(xxi) and clauses (ii),
(iii) and (iv) of Section 9(e) (xix), such counsel may rely as to factual
matters upon certificated or other documents furnished by officers and
directors of the Company and representations of the Initial Purchaser and by
government officials, and upon such other documents such counsel deems
appropriate as a basis for its opinion. Such counsel may specify the
jurisdictions in which it is admitted to practice and that it is not admitted
to practice in any other jurisdiction or an expert in the law of any other
jurisdiction. To the extent such opinion concerns the laws of any other such
jurisdiction, such counsel may rely upon the opinion of local counsel
(satisfactory to the Initial Purchaser) admitted to practice in such
jurisdiction. Any opinion relied upon by such counsel as aforesaid shall be
delivered to the Initial Purchaser together with the opinion of such local
counsel, which opinion shall state that such counsel believes that its and the
Initial Purchaser's reliance thereon is justified.
(f) The Initial Purchaser shall have received on
the Closing Date a solvency opinion addressed to the Initial Purchaser or the
Trustee and in form and substance satisfactory to the Initial Purchaser and its
counsel.
(g) The Initial Purchaser shall have received on
the Closing Date an opinion, dated the Closing Date, of Xxxxxx & Xxxxxxx,
counsel for the Initial Purchaser, in form and substance reasonably
satisfactory to the Initial Purchaser.
(h) The Initial Purchaser shall have received, at
the time this Agreement is executed and at the Closing Date, letters dated the
date hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Initial Purchaser from KPMG Peat Marwick LLP, independent
public accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to the Initial Purchaser
with respect to the financial statements and certain financial information
contained in the Offering Memorandum.
(i) The Series A Notes shall have been approved
by the NASD for trading and duly listed in PORTAL.
(j) The Initial Purchaser shall have received a
counterpart, conformed as executed, of the Indenture which shall have been
entered into by the Company, the Guarantors and the Trustee.
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(k) The Company and the Guarantors shall have
executed the Registration Rights Agreement and the Initial Purchaser shall have
received an original copy thereof, duly executed by the Company and the
Guarantors.
(l) The Initial Purchaser shall have received a
counterpart, conformed as executed, of the Merger Agreement and all other
Merger Documents.
(m) The merger of Green I Acquisition Corp. into
the Company pursuant to the Merger Agreement shall have been consummated and
evidence as to such, satisfactory to the Initial Purchaser and its counsel,
shall have been delivered to the Initial Purchaser.
(n) The Initial Purchaser shall have received a
counterpart, conformed as executed, of the Credit Agreement and all other
Credits Documents.
(o) The Company shall have applied the proceeds
from the sale and issuance of the Series A Notes and Series A Subsidiary
Guarantees in accordance with the description provided under the caption "Use
of Proceeds" of the Offering Memorandum and evidence as to such, satisfactory
to the Initial Purchaser and its counsel, shall have been delivered to the
Initial Purchaser.
(p) The counsel to the Initial Purchaser shall
have been furnished with such documents, in addition to those set forth above,
as it may reasonably require for the purpose of enabling it to review or pass
upon the matters referred to in this Section 9 and in order to evidence the
accuracy, completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
(q) Neither the Company nor the Guarantors shall
have failed at or prior to the Closing Date to perform or comply with any of
the agreements herein contained and required to be performed or complied with
by the Company or the Guarantors, as the case may be, at or prior to the
Closing Date.
10. EFFECTIVENESS OF AGREEMENT AND TERMINATION. This
Agreement shall become effective upon the execution and delivery of this
Agreement by the parties hereto.
This Agreement may be terminated at any time on or prior to
the Closing Date by the Initial Purchaser by written notice to the Company if
any of the following has occurred: (i)
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any outbreak or escalation of hostilities or other national or international
calamity or crisis or change in economic conditions or in the financial markets
of the United States or elsewhere that, in the Initial Purchaser's judgment, is
material and adverse and, in the Initial Purchaser's judgment, makes it
impracticable to market the Series A Notes on the terms and in the manner
contemplated in the Offering Memorandum, (ii) the suspension or material
limitation of trading in securities or other instruments on the New York Stock
Exchange, the American Stock Exchange, the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange, the Chicago Board of Trade or the Nasdaq
National Market or limitation on prices for securities or other instruments on
any such exchange or the Nasdaq National Market, (iii) the suspension of
trading of any securities of the Company or any Guarantor on any exchange or in
the over-the-counter market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action
by any federal, state or local government or agency in respect of its monetary
or fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
11. MISCELLANEOUS. Notices given pursuant to any provision
of this Agreement shall be addressed as follows: (i) if to the Company or any
Guarantor, to The GNI Group, Inc., 0000 Xxxxxxxxxxxx Xxxx, X.X. Box 220 Deer
Park, TX 77536-0220, Attention: Chief Financial Officer, with a copy to 399
Venture Partners, Inc., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxx 0, Xxx Xxxx, XX
00000, Attention: Xxxxxx X. Xxxxxxxxx and (ii) if to the Initial Purchaser, to
CIBC Xxxxxxxxxxx Corp., 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxxxx Xxxxxxx or in any case to such other address as the person
to be notified may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company, the Guarantors
and the Initial Purchaser set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the Series A Notes, regardless of (i) any investigation, or
statement as to the results thereof, made by or on behalf of the Initial
Purchaser, the officers or directors of the Initial Purchaser, any person
controlling the Initial Purchaser, the Company, any Guarantor, the officers or
directors of the Company or any Guarantor, or any person controlling
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the Company or any Guarantor, (ii) acceptance of the Series A Notes and payment
for them hereunder and (iii) termination of this Agreement.
If for any reason the Series A Notes (including the Series A
Subsidiary Guarantees) are not delivered by or on behalf of the Company as
provided herein (other than as a result of any termination of this Agreement
pursuant to Section 10), the Company and each Guarantor, jointly and severally,
agree to reimburse the Initial Purchaser for all out-of-pocket expenses
(including the fees and disbursements of counsel) incurred by them.
Notwithstanding any termination of this Agreement, the Company shall be liable
for all expenses which it has agreed to pay pursuant to Section 5(i) hereof.
The Company and each Guarantor also agree, jointly and severally, to reimburse
the Initial Purchaser and its officers, directors and each person, if any, who
controls such Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act for any and all fees and expenses (including
without limitation the fees and expenses of counsel) incurred by them in
connection with enforcing their rights under this Agreement (including without
limitation its rights under Section 8).
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company, the
Guarantors, the Initial Purchaser, the Initial Purchaser's directors and
officers, any controlling persons referred to herein, the directors of the
Company and the Guarantors and their respective successors and assigns, all as
and to the extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term "successors
and assigns" shall not include a purchaser of any of the Series A Notes from
the Initial Purchaser merely because of such purchase.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York without regard to conflicts of law rules
thereof.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
Please confirm by signing below that the foregoing correctly
sets forth the agreement among the Company, the Guarantors and the Initial
Purchaser.
[Signature Pages Follow]
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Very truly yours,
THE GNI GROUP, INC.
By: /s/ XXXXX X. XXXXXX
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
GUARANTORS:
GULF NUCLEAR OF LOUISIANA, INC.
By: /s/ XXXXX X. XXXXXX
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
GNI CHEMICALS CORPORATION
By: /s/ XXXXX X. XXXXXX
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
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Disposal Systems, Inc.
By: /s/ XXXXX X. XXXXXX
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
RESOURCE TRANSPORTATION SERVICES, INC.
By: /s/ XXXXX X. XXXXXX
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
DISPOSAL SYSTEMS OF CORPUS CHRISTI, INC.
By: /s/ XXXXX X. XXXXXX
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
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Agreed to and accepted by:
CIBC XXXXXXXXXXX CORP.
By: /s/ XXXXXXX XXXXXXX
-----------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
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SCHEDULE A
GUARANTORS
GULF NUCLEAR OF LOUISIANA, INC. - A DELAWARE CORPORATION.
GNI CHEMICALS CORPORATION - A DELAWARE CORPORATION
DISPOSAL SYSTEMS, INC. - A DELAWARE CORPORATION.
RESOURCE TRANSPORTATION SERVICES, INC. - A DELAWARE CORPORATION.
DISPOSAL SYSTEMS OF CORPUS CHRISTI, INC. - A DELAWARE CORPORATION
S-1
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EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT
