EXHIBIT 1
Elgin National Industries, Inc.
$85,000,000
11% Senior Notes due 2007
Purchase Agreement
November 3, 1997
BancAmerica Xxxxxxxxx Xxxxxxxx
CIBC Wood Gundy Securities Corp.
$85,000,000
11% Senior Notes due 2007
of Elgin National Industries, Inc.
PURCHASE AGREEMENT
November 3, 1997
BancAmerica Xxxxxxxxx Xxxxxxxx
CIBC Xxxx Xxxxx Securities Corp.
c/o BancAmerica Xxxxxxxxx Xxxxxxxx
000 Xxxxx XxXxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Re: Elgin National Industries, Inc.
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Dear Sirs:
Elgin National Industries, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to BancAmerica Xxxxxxxxx Xxxxxxxx and
CIBC Wood Gundy Securities Corp. (each, an "Initial Purchaser" and collectively,
the "Initial Purchasers") an aggregate of $85,000,000 in principal amount of its
11% Senior Notes due 2007 (the "Senior Notes"), subject to the terms and
conditions set forth herein. The Senior 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
Norwest Bank Minnesota, National Association, as trustee (the "Trustee"). The
Senior Notes and the Exchange Notes (as defined below) issuable in exchange
therefor are collectively referred to herein as the "Notes." The Notes will be
guaranteed (the "Subsidiary Guarantees") by each of the entities listed on
Schedule A, hereto (each, a "Guarantor" and collectively the "Guarantors").
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Indenture.
1. Offering Memorandum. The Senior Notes will be offered and sold to
the Initial Purchasers pursuant to one or more exemptions from the registration
requirements under the Securities Act of 1933, as amended (the "Act"). The
Company has prepared a preliminary offering memorandum, dated October 15, 1997
(the "Preliminary Offering Memorandum") and a final offering memorandum, dated
November 3, 1997 (the "Offering Memorandum"), relating to the Senior 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 Senior Notes (and all securities,
other than the Exchange
Notes, issued in exchange therefor, in substitution thereof or upon conversion
thereof) shall bear the following legend:
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1)(a) INSIDE THE UNITED
STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904
OF THE SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(a)(1), (2), (3) OR (7) OF THE SECURITIES ACT (AN "INSTITUTIONAL
ACCREDITED INVESTOR)) THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF
WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF
AN AGGREGATE PRINCIPAL AMOUNT OF SENIOR NOTES LESS THAN $100,000 OR IF OTHERWISE
REQUESTED BY THE COMPANY, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT
SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, OR (e) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL, IF THE COMPANY SO REQUESTS), (2) TO THE
COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND (B) THE HOLDER WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
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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 Purchasers, and the Initial Purchasers agree,
severally and not jointly, to purchase from the Company, the principal amounts
of Senior Notes set forth opposite the name of such Initial Purchasers on
Schedule B hereto at a purchase price equal to 97.0% of the principal amount
thereof (the "Purchase Price").
3. Terms of Offering. The Initial Purchasers have advised the
Company that they will make offers (the "Exempt Resales") of the Senior Notes
purchased hereunder on the terms set forth in the Offering Memorandum, as
amended or supplemented, solely to (i) persons whom the Initial Purchasers
reasonably believe to be "qualified institutional buyers" as defined in Rule
144A under the Act ("QIBs"), and (ii) not more than five other institutional
"accredited investors," as defined in Rule 501(a) (1), (2), (3) or (7) under the
Act, that make certain representations and agreements to the Company (each, an
"Accredited Institution") (such persons specified in clauses (i) and (ii) being
referred to herein as the "Eligible Purchasers"). The Initial Purchasers will
offer the Senior Notes to Eligible Purchasers initially at a price equal to 100%
of the principal amount thereof. Such price may be changed at any time without
notice.
The Initial Purchasers and their direct and indirect transferees of
the Senior Notes will have the registration rights set forth in the registration
rights agreement (the "Registration Rights Agreement"), to be dated the Closing
Date, in substantially the form of Exhibit A hereto, for so long as such Senior
Notes constitute "Transfer Restricted Securities" (as defined in the
Registration Rights Agreement). Pursuant to the Registration Rights Agreement,
the Company and the Guarantors will agree to file with the Securities and
Exchange Commission (the "Commission") under the circumstances set forth
therein, (i) a registration statement under the Act (the "Exchange Offer
Registration Statement") relating to the Exchange Notes, to be offered in
exchange for the Senior Notes (such offer to exchange being referred to as the
"Exchange Offer") and the Subsidiary Guarantees thereof and (ii) a shelf
registration statement pursuant to Rule 415 under the Act (the "Shelf
Registration Statement" and, together with the Exchange Offer Registration
Statement, the "Registration Statements") relating to the resale by certain
holders of the Senior Notes and to use its best 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 Senior Notes, the Subsidiary
Guarantees and the Registration Rights Agreement are hereinafter sometimes
referred to collectively as the "Operative Documents."
On the Closing Date, the proceeds of the Senior Notes will be used in
connection with the consummation of the Recapitalization Transactions, as
defined in the Offering Memorandum, including the repurchase from certain
holders of common stock and preferred stock of ENI Holding Corp. ("ENI") and
senior subordinated notes of the Company pursuant to the Repurchase Agreement
dated October 15, 1997 (the "Repurchase Agreement") among the Company, ENI and
the stockholders of ENI, and (ii) any other agreements and side letters
ancillary to or in connection with the transactions contemplated by the
Repurchase Agreement (the "Ancillary Agreements"). On the Closing Date, the
Company and ENI will enter into and consummate an Agreement and Plan of Merger
(the "Merger Agreement") and file a Certificate of Merger (the "Certificate of
Merger") with the Secretary of State of Delaware. The Repurchase
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Agreement, the Ancillary Agreements, the Merger Agreement and the Certificate of
Merger are hereinafter sometimes referred to collectively as the
"Recapitalization Documents."
On the Closing Date, the Company, the Guarantors and Bank of America
National Trust and Savings Association will enter into an amended and restated
Credit Agreement, on substantially the terms described in the Offering
Memorandum (the "Senior Credit Facility" and, together with any notes, security
agreement and other agreements ancillary thereto, the "Credit Documents"). The
Operative Documents, the Recapitalization Documents and the Credit Documents are
hereinafter sometimes referred to collectively as the "Transaction Documents."
4. Delivery and Payment.
(a) Delivery of, and payment of the Purchase Price for, the Senior
Notes shall be made at the offices of Xxxxx, Brown & Xxxxx, 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx or such other location as may be mutually acceptable.
Such delivery and payment shall be made at 9:00 a.m., Chicago time, on November
5, 1997 or at such other time as shall be agreed upon by the Initial Purchasers
and the Company. The time and date of such delivery and the payment are herein
called the "Closing Date."
(b) One or more of the Senior Notes 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 Senior Notes (collectively, the "Global Note"), shall be
delivered by the Company to the Initial Purchasers (or as the Initial Purchasers
direct) in each case with any transfer taxes thereon duly paid by the Company
against payment by the Initial Purchasers of the Purchase Price thereof by wire
transfer in same day funds to the order of the Company or on behalf of the
Company as the Company directs in writing prior to 12:30 p.m., Chicago time, on
the business day immediately preceding the Closing Date. The Global Note shall
be made available to the Initial Purchasers for inspection not later than 12:30
p.m., Chicago time, on the business day immediately preceding the Closing Date.
5. Agreements of the Company. The Company hereby agrees with the
Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by
the Initial Purchasers, confirm such advice in writing, (i) of the issuance by
any state securities commission of any stop order suspending the qualification
or exemption from qualification of any Senior Notes for offering or sale in any
jurisdiction designated by the Initial Purchasers pursuant to Section 5(e)
hereof, or the initiation of any proceeding by any state securities commission
or any other federal or state regulatory authority for such purpose and (ii) of
the happening of any event during the period referred to in Section 5(c) below
that makes any statement of a material fact made in the Offering Memorandum
untrue or that requires any additions to or changes in the Offering Memorandum
in order to make the statements therein not misleading. The Company shall use
its best efforts to prevent the issuance of any stop order or order suspending
the qualification or exemption of any Senior Notes under any state securities or
Blue Sky laws and, if at any time any state securities commission or other
federal or state regulatory authority shall issue an order suspending the
qualification or exemption of any Senior
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Notes under any state securities or Blue Sky laws, the Company shall use its
best efforts to obtain the withdrawal or lifting of such order at the earliest
possible time.
(b) To furnish the Initial Purchasers and those persons
identified by the Initial Purchasers to the Company as many copies of the
Offering Memorandum, and any amendments or supplements thereto, as the Initial
Purchasers may reasonably request for the time period specified in Section 5(c).
Subject to the Initial Purchasers' compliance with their representations and
warranties and agreements set forth in Section 7 hereof, the Company consents to
the use prior to the date hereof of the Preliminary Offering Memorandum and, on
and after the date hereof, the Offering Memorandum, and any amendments and
supplements thereto required pursuant hereto, by the Initial Purchasers in
connection with Exempt Resales.
(c) During such period as in the opinion of counsel for the
Initial Purchasers an Offering Memorandum is required by law to be delivered in
connection with Exempt Resales by the Initial Purchasers and in connection with
market-making activities of the Initial Purchasers for so long as any Senior
Notes are outstanding, (i) not to make any amendment or supplement to the
Offering Memorandum of which the Initial Purchasers shall not previously have
been advised or to which the Initial Purchasers shall reasonably object after
being so advised (unless, in the opinion of counsel to the Company, such
amendment or supplement is required by law) and (ii) to prepare promptly upon
the Initial Purchasers' reasonable request, any amendment or supplement to the
Offering Memorandum which may be necessary or advisable in connection with such
Exempt Resales or such market-making activities.
(d) If, during the period referred to in Section 5(c) above,
any event shall occur or condition shall exist as a result of which, in the
opinion of counsel to the Company or the reasonable opinion of counsel to the
Initial Purchasers, it becomes necessary to amend or supplement the Offering
Memorandum in order to make the statements therein, in the light of the
circumstances when such Offering Memorandum is delivered to an Eligible
Purchaser, not misleading, or if, in the opinion of counsel to the Initial
Purchasers, it is necessary to amend or supplement the Offering Memorandum to
comply with any applicable law, forthwith to prepare an appropriate amendment or
supplement to such Offering Memorandum so that the statements therein, as so
amended or supplemented, will not, in the light of the circumstances when it is
so delivered, be misleading, or so that such Offering Memorandum will comply
with applicable law, and to furnish to the Initial Purchasers and such other
persons as the Initial Purchasers may designate such number of copies thereof as
the Initial Purchasers may reasonably request.
(e) Prior to the sale of all Senior Notes pursuant to Exempt
Resales as contemplated hereby, to cooperate with the Initial Purchasers and
counsel to the Initial Purchasers in connection with the registration or
qualification of the Senior Notes for offer and sale to the Initial Purchasers
and pursuant to Exempt Resales under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers may request and to continue such
registration or qualification in effect so long as required for Exempt Resales
and to file such consents to service of process or other documents as may be
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
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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 Senior Notes are outstanding and during any
period in which the Company is not subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), (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 shareholders' 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 quarter ended September 30, 1997 and
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 Senior Notes are outstanding, to furnish to
the Initial Purchasers as soon as available copies of all publicly available
information concerning the Company and/or its subsidiaries as either of the
Initial Purchasers may reasonably request.
(h) So long as any of the Senior 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 Exchange Act, to make available to any holder of
Senior Notes in connection with any sale thereof and any prospective purchaser
of such Senior 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 the following expenses of the Company and the Guarantors 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 Senior Notes to the Initial
Purchasers 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 Purchasers and
persons designated by them in the quantities specified herein, (ii) all costs
and expenses related to the transfer and delivery of the Senior Notes to the
Initial Purchasers and pursuant to Exempt Resales, including any transfer or
other taxes payable thereon, (iii) all costs of printing or producing this
Agreement, the other Operative Documents and any other agreements or documents
in connection with the offering, purchase, sale or delivery of the Senior
6
Notes, (iv) all expenses in connection with the registration or qualification of
the Senior Notes and the Subsidiary Guarantees for offer and sale under the
securities or Blue Sky laws of the several states and all costs of printing or
producing any preliminary and supplemental Blue Sky memoranda in connection
therewith (including the filing fees and fees and disbursements of counsel for
the Initial Purchasers in connection with such registration or qualification and
memoranda relating thereto), (v) the cost of printing certificates representing
the Senior Notes and the Subsidiary Guarantees, (vi) all expenses and listing
fees in connection with the application for quotation of the Senior Notes in the
Private Offerings, Resales and Trading through Automated Linkages ("PORTAL")
market, (vii) any 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 depository
(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 Agreement, (xi) the fees and
expenses of Xxxxxxxx, Xxxxx in connection with the preparation of their solvency
letter, (xii) transportation costs of the "road show" presentation, and (xiii)
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. Notwithstanding the foregoing, except as provided in
clause (iv) above and Sections 8 and 11 hereof, the Initial Purchasers shall be
responsible for the fees and disbursements of their counsel.
(j) To use its best efforts to effect the inclusion of the
Senior Notes in PORTAL and to maintain the listing of the Senior Notes on PORTAL
for so long as the Senior Notes are outstanding.
(k) 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 date that is 180 days after 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 Senior Notes and the Subsidiary
Guarantees, without the prior written consent of BancAmerica Xxxxxxxxx Xxxxxxxx.
(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 Senior Notes to the Initial Purchasers
or pursuant to Exempt Resales in a manner that would require the registration of
any such sale of the Senior Notes 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 Senior Notes.
(o) To comply with all of its agreements set forth in the
Registration Rights Agreement.
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(p) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by it prior to the
Closing Date, to satisfy all conditions precedent to the delivery of the Senior
Notes and the Subsidiary Guarantees, and to file the charter amendment and enter
into the agreement contemplated by Section 9(p).
(q) To use the proceeds of the Senior Notes for the purposes
specified in the Offering Memorandum, and to enter into the Credit Documents and
to consummate the Recapitalization Transactions on substantially the terms
described in the Offering Memorandum.
(r) To enter into employment agreements with Senior Management (as
defined in the Offering Memorandum) on substantially the terms described in the
Offering Memorandum.
6. Representations, Warranties and Agreements of ENI, the Company and the
Guarantors. As of the date hereof, each of ENI, the Company and the Guarantors
represents and warrants to, and agrees with, the Initial Purchasers, jointly and
severally, that:
(a) The Offering Memorandum does not, and any supplement or amendment
to it 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
Offering Memorandum (or any supplement or amendment thereto) based upon
information relating to the Initial Purchasers furnished to the Company in
writing by the Initial Purchasers expressly for use therein. No stop order
preventing the use of 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 ENI, 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 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 reasonably be expected to have a material adverse effect on
the business, financial condition or results of operations of the Company and
its subsidiaries, taken as a whole (a "Material Adverse Effect").
(c) All outstanding shares of capital stock of ENI and the Company
have been duly authorized and validly issued and are fully paid, non-assessable
and not subject to any preemptive or similar rights.
(d) The Company is the only direct subsidiary of ENI, and the
entities listed on Schedule C hereto are the only subsidiaries, direct or
indirect, of ENI or the Company. All of the outstanding shares of capital stock
of each such subsidiary have been duly authorized
8
and validly issued and are fully paid and non-assessable, and are owned by the
Company (or, in the case of the Company, ENI), 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 Liens
granted in connection with the Company's current credit agreement or Liens to be
granted in connection with the Credit Documents and other than Xxxxxxx &
Xxxxxxxx (Mauritius) Private Limited, which is beneficially owned by the
Company.
(e) This Agreement has been duly authorized, executed and delivered
by ENI, the Company and each of the Guarantors.
(f) The Indenture has been duly authorized by the Company and each of
the Guarantors and, on the Closing Date, will have been validly executed and
delivered by the Company and each of the Guarantors. When the Indenture has been
duly executed and delivered by the Company and each of the Guarantors, the
Indenture will be a valid and binding agreement of the Company and each
Guarantor, enforceable against the Company and each Guarantor in accordance with
its terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance 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 Senior Notes have been duly authorized by the Company, and,
on the Closing Date, will have been validly executed and delivered by the
Company. When the Senior Notes have been issued, executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by
the Initial Purchasers in accordance with the terms of this Agreement, the
Senior 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, fraudulent conveyance 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 Senior Notes will conform, in all material respects, as to
legal matters to the description thereof contained in the Offering Memorandum.
(h) The Exchange Notes have been duly authorized by the Company. When
the Exchange Notes are issued, executed and authenticated in accordance with the
terms of the Exchange Offer and the Indenture, the Exchange 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, fraudulent conveyance 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 Subsidiary Guarantee to be endorsed on the Senior 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 Senior Notes have been
9
issued, executed and authenticated in accordance with the Indenture and
delivered to and paid for by the Initial Purchasers in accordance with the terms
of this Agreement, the Subsidiary Guarantee of each Guarantor endorsed thereon
will be entitled to the benefits of the Indenture and 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, fraudulent conveyance 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 Subsidiary Guarantees to be
endorsed on the Senior Notes will conform, in all material respects, as to legal
matters to the description thereof contained in the Offering Memorandum.
(j) The Subsidiary Guarantee to be endorsed on the Exchange 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 Exchange
Notes have been issued, executed and authenticated in accordance with the terms
of the Exchange Offer and the Indenture, the Subsidiary Guarantee of each
Guarantor endorsed thereon will be entitled to the benefits of the Indenture and
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, fraudulent conveyance 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 Exchange Notes are
issued, authenticated and delivered, the Subsidiary Guarantees to be endorsed on
the Exchange Notes will conform, in all material respects, 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, 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, fraudulent conveyance 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) rights of indemnification or contribution may
be limited by public policy considerations under the Federal securities laws. On
the Closing Date, the Registration Rights Agreement will conform, in all
material respects, as to legal matters to the description thereof in the
Offering Memorandum.
(l) The Company and each Guarantor (to the extent a party thereto)
has all requisite corporate power and authority to enter into the Senior Credit
Facility and each of the other Credit Documents.
(m) Each of the Senior Credit Facility and the other Credit Documents
has been duly and validly authorized and, on the Closing Date, will be duly and
validly executed and delivered by the Company and each Guarantor party thereto
and, assuming due authorization, execution and delivery by the other parties
thereto, constitutes the valid and binding agreement of the Company and each
Guarantor party thereto, enforceable against the
10
Company and each Guarantor party thereto in accordance with its terms, except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance 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 Subsidiary Guarantees to be endorsed on the Senior Notes will conform, in
all material respects, as to legal matters to the description thereof contained
in the Offering Memorandum.
(n) ENI and the Company each has all requisite corporate power and
authority to enter into the Recapitalization Documents.
(o) Prior to the Closing Date, each of the Recapitalization Documents
will be duly and validly authorized, and, no later than the Closing Date, will
be duly and validly executed and delivered by the Company, ENI and any Guarantor
party thereto, and, assuming due authorization, execution and delivery by the
other parties thereto, constitutes or will constitute the valid and binding
agreement of the Company, enforceable against ENI and the Company and any such
Guarantor in accordance with its terms, except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency, fraudulent conveyance 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. All representations and warranties made by ENI and the
Company in Section 4 of the Repurchase Agreement are true and correct in all
material respects. Upon consummation of the merger of the Company with and into
ENI, with ENI surviving, pursuant to the Merger Agreement and the Certificate of
Merger, each of the agreements to which the Company was a party immediately
prior to the consummation of such merger (including without limitation the
Senior Notes and the Indenture) will constitute the valid and binding agreements
of ENI, enforceable against ENI in accordance with their terms except (i) the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance 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) rights of
indemnification or contribution may be limited by public policy considerations
under the Federal securities laws.
(p) Neither ENI, the Company nor any of its subsidiaries is (i) in
violation of its respective charter or by-laws or (ii) in default in the
performance of any Transaction Document or any other material 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 their subsidiaries, taken as a whole, to which the Company or any of their
subsidiaries is a party or by which ENI, the Company or any of their
subsidiaries or their respective property is bound, except such default or
defaults as would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect, or prevent or adversely affect the issuance
of the Senior Notes as contemplated by this Agreement and the Offering
Memorandum or the consummation of the Recapitalization Transactions.
(q) The execution, delivery and performance of this Agreement and
each of the other Transaction Documents by ENI, the Company and each of the
Guarantors party thereto, compliance by ENI, 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
11
(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 Federal or state securities or Blue Sky laws) (ii) conflict
with or constitute a breach of any of the terms or provisions of, or a default
under, the charter or by-laws of ENI, the Company or any of its subsidiaries or
any other Transaction Document or, except as set forth on Schedule 4.3 to the
Repurchase Agreement (consents with respect to which will be obtained prior to
the Closing Date), any other indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to ENI, the Company and their
subsidiaries, taken as a whole, to which ENI, the Company or any of their
subsidiaries is a party or by which ENI, the Company or any of their
subsidiaries or their respective property is bound, (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 ENI, the
Company, any of their subsidiaries or their respective property, (iv) result in
the imposition or creation of (or the obligation to create or impose) a Lien
(except for Permitted Liens, as defined in the Offering Memorandum) under, any
agreement or instrument (other than the Credit Documents to the extent described
in the Offering Memorandum) to which ENI, the Company or any of their
subsidiaries is a party or by which ENI, the Company or any of their
subsidiaries or their respective property is bound, or (v) result in the
termination, suspension or revocation of any material Authorization (as defined
below) of ENI, the Company or any of their subsidiaries or result in any other
impairment of the rights of the holder of any such Authorization.
(r) Other than as described in the Offering Memorandum, there are no
legal or governmental proceedings pending or threatened to which ENI, the
Company or any of their subsidiaries is or could be a party or to which any of
their respective property is or could be subject, which would reasonably be
expected to result, singly or in the aggregate, in a Material Adverse Effect, or
which could prevent or adversely affect the issuance of the Senior Notes or the
consummation of the Recapitalization Transactions.
(s) Neither ENI, the Company nor any of their subsidiaries has
violated any foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws") or any
provisions of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the rules and regulations promulgated thereunder, except for such
violations which, (i) singly or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect or (ii) are disclosed in the Offering
Memorandum.
(t) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with Environmental
Laws or any Authorization, any related constraints on operating activities and
any potential liabilities to third parties) which (i) would, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect or (ii) are
not disclosed in the Offering Memorandum.
(u) Each of ENI, the Company and their subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "Authorization") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including without
12
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, reasonably be
expected to have a Material Adverse Effect. Each such Authorization is valid and
in full force and effect and each of ENI, the Company and their subsidiaries is
in compliance with all the terms and conditions thereof and with the rules and
regulations of the authorities and governing bodies having jurisdiction with
respect thereto; and no event has occurred (including, without limitation, the
receipt of any notice from any authority or governing body) which allows or,
after notice or lapse of time or both, would allow, revocation, suspension or
termination of any such Authorization or results or, after notice or lapse of
time or both, would result in any other impairment of the rights of the holder
of any such Authorization; and such Authorizations contain no restrictions that
are burdensome to ENI, the Company or any of their 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 as
would not, singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(v) The accountants, Xxxxxxx & Xxxxxxx, L.L.P., that 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 ENI, 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. No
separate financial statements of the Guarantors would be required to be included
in the Offering Memorandum if the Offering Memorandum were included as a
prospectus in a registration statement on Form S-1.
(w) The historical financial statements, together with related
schedules and notes included in the Offering Memorandum (and any amendment or
supplement thereto), present fairly in all material respects the consolidated
financial position, results of operations and changes in financial position of
ENI and its subsidiaries on the basis stated in the Offering Memorandum at the
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved, except as disclosed therein; and the other financial and
statistical information and data set forth in the Offering Memorandum (and any
amendment or supplement thereto) are, in all material respects, accurately
presented and prepared on a basis consistent with such financial statements and
the books and records of ENI and the Company (including, with respect to
statistical information not derived from the Company's business or accounting
records, from secondary sources the Company reasonably believes to be reliable).
(x) The pro forma financial data included in the Preliminary Offering
Memorandum and the Offering Memorandum have been prepared on a basis consistent
with the historical financial statements of ENI and its subsidiaries and give
effect to assumptions used in the preparation thereof on a reasonable basis and
in good faith and present fairly in all material respects the historical
transactions, the offering of the Notes and the Recapitalization
13
Transactions contemplated by the Preliminary Offering Memorandum and the
Offering Memorandum.
(y) Neither ENI, the Company nor any Guarantor is or, after giving
effect to the offering and sale of the Senior Notes and the application of the
net proceeds thereof as described the Offering Memorandum, will be, an
"investment company," as such term is defined in the Investment Company Act of
1940, as amended.
(z) Other than existing agreements with parties to the Repurchase
Agreement, which agreements are being terminated and released in accordance with
the Repurchase Agreement and Recapitalization Transactions, there are no
contracts, agreements or understandings between ENI, the Company or any
Guarantor and any person granting such person the right to require ENI, the
Company or such Guarantor to file a registration statement under the Act with
respect to any securities of ENI, the Company or such Guarantor or to require
ENI, the Company or such Guarantor to include such securities with the Notes and
Subsidiary Guarantees registered pursuant to any Registration Statement.
(aa) Neither ENI, the Company nor any of their subsidiaries nor any
agent thereof acting on the behalf of them has taken, and none of them will
take, any action that might cause this Agreement or the issuance or sale of the
Senior Notes to violate Regulation G (12 C.F.R. Part 207), 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.
(bb) 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.
(cc) 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
ENI, the Company and their 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 ENI
(other than in connection with the Recapitalization Transactions), the Company
or any of their subsidiaries and (iii) neither ENI, the Company nor any of their
subsidiaries has incurred any material liability or obligation, direct or
contingent.
14
(dd) 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.
(ee) When the Senior Notes and the Subsidiary Guarantees are issued
and delivered pursuant to this Agreement, neither the Senior Notes nor the
Subsidiary Guarantees will be of the same class (within the meaning of Rule 144A
under the Act) as any security of the Company or any Guarantor 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.
(ff) No form of general solicitation or general advertising (as
defined in Regulation D under the Act) was used by ENI, the Company, the
Guarantors or any of their respective representatives (other than the Initial
Purchasers, as to whom ENI, the Company and the Guarantors make no
representation) in connection with the offer and sale of the Senior Notes
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 Senior Notes or the Subsidiary Guarantees
have been issued and sold by the Company or any Guarantor within the six-month
period immediately prior to the date hereof.
(gg) Prior to the effectiveness of any Registration Statement, the
Indenture is not required to be qualified under the TIA.
(hh) No registration under the Act of the Senior Notes or the
Subsidiary Guarantees is required for the sale of the Senior Notes and the
Subsidiary Guarantees to the Initial Purchasers as contemplated hereby or for
the Exempt Resales assuming (i) the accuracy of the Initial Purchasers'
representations and warranties and agreements set forth in Section 7 hereof and
(ii) the accuracy of the representations made by each Accredited Institution
that purchases Senior Notes pursuant to an Exempt Resale as set forth in the
letter of representations in the form of Annex A to the Offering Memorandum.
(ii) None of ENI, the Company, the Guarantors nor any of their
respective affiliates or any person acting on its or their behalf (other than
the Initial Purchasers, as to whom the Company and the Guarantors make no
representation) has engaged or will engage in any directed selling efforts
within the meaning of Regulation S under the Act ("Regulation S") with respect
to the Senior Notes or the Subsidiary Guarantees.
(jj) Each certificate signed by any officer of the Company or any
Guarantor and delivered to the Initial Purchasers or counsel for the Initial
Purchasers shall be deemed to be a representation and warranty by ENI, the
Company or such Guarantor to the Initial Purchasers as to the matters covered
thereby.
(kk) Neither ENI, the Company nor any Guarantor (i) is insolvent, (ii)
will be rendered insolvent by the issuance of the Notes or the Subsidiary
Guarantees, as applicable, or by the consummation of the Recapitalization
Transactions, (iii) is, or immediately
15
after consummation of the Recapitalization Transactions will be, engaged in a
business or transaction for which its remaining assets constitute unreasonably
small capital, or (iv) intends to incur, or believes that it will incur, debts
(including contingent obligations) beyond its ability to pay such debts as they
mature.
ENI, the Company and the Guarantors acknowledge that the Initial
Purchasers and, for purposes of the opinions to be delivered to the Initial
Purchasers pursuant to Section 9 hereof, counsel to the Company and the
Guarantors and counsel to the Initial Purchasers, will rely upon the accuracy
and truth of the foregoing representations and hereby consent to such reliance.
7. Initial Purchasers' Representations and Warranties. Each of the
Initial Purchasers, severally and not jointly, represents and warrants to ENI,
the Company and the Guarantors, and agrees that:
(a) Such Initial Purchaser is either a QIB or an Accredited
Institution, in either case, with such knowledge and experience in financial and
business matters as is necessary in order to evaluate the merits and risks of an
investment in the Senior Notes.
(b) Such Initial Purchaser (A) is not acquiring the Senior Notes with
a view to any distribution thereof or with any present intention of offering or
selling any of the Senior Notes 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 Senior Notes only to
(x) QIBs in reliance on the exemption from the registration requirements of the
Act provided by Rule 144A, (y) not more than five Accredited Institutions that
execute and deliver a letter containing certain representations and agreements
in the form attached as Annex A to the Offering Memorandum.
(c) 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 Purchasers or any of their respective representatives in connection with
the offer and sale of the Senior Notes 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) Such Initial Purchaser agrees that, in connection with Exempt
Resales, such Initial Purchaser will solicit offers to buy the Senior Notes only
from, and will offer to sell the Senior Notes only to, Eligible Purchasers. Each
Initial Purchaser further agrees that it will offer to sell the Senior Notes
only to, and will solicit offers to buy the Senior Notes only from (A) Eligible
Purchasers that the Initial Purchaser reasonably believes are QIBs, and (B)
Accredited Institutions who make the representations contained in, and execute
and return to the Initial Purchaser, a certificate in the form of Annex A
attached to the Offering Memorandum, in each case, that agree to be bound by the
limitations on transfer set forth in the Offering Memorandum under "Transfer
Restrictions."
16
The Initial Purchaser acknowledges that ENI, the Company and the
Guarantors and, for purposes of the opinions to be delivered to each Initial
Purchaser pursuant to Section 9 hereof, counsel to ENI, the Company and the
Guarantors and counsel to the Initial Purchasers will rely upon the accuracy and
truth of the foregoing representations and each Initial Purchaser hereby
consents to such reliance.
8. Indemnification.
----------------
(a) The Company and each Guarantor agree, jointly and severally,
to indemnify and hold harmless each Initial Purchaser, its directors, its
officers and each person, if any, who controls such Initial Purchasers 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 Senior 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 an Initial Purchaser furnished in
writing to the Company by such Initial Purchaser, provided, however, that this
indemnity agreement with respect to the Preliminary Offering Memorandum shall
not inure to the benefit of an Initial Purchaser if the person asserting any
such losses, claims, damages, liabilities, expenses or judgments purchased Notes
from such Initial Purchaser, or any person controlling such Initial Purchaser,
if a copy of the Final Offering Memorandum (as then amended or supplemented) was
not sent or given by or on behalf of such Initial Purchaser to such person at or
prior to the written confirmation of the sale of such Notes to such person and
if it is finally determined by a court of competent jurisdiction that (x) the
Final Offering Memorandum (as so amended or supplemented) would have corrected
the defect giving rise to such loss, claim, damage, liability, expense or
judgment and (y) such person would not have been entitled to any recovery with
respect to such losses, claims, damages, liabilities, expenses or judgments had
such person received the Final Offering Memorandum.
(b) Each Initial Purchaser agrees, severally and not jointly, 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
furnished in writing to the Company by the Initial Purchaser expressly for use
in the Preliminary Offering Memorandum or the Offering Memorandum, as specified
in a letter to be delivered on the Closing Date.
(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
17
may be sought (the "indemnifying party") in writing and the indemnifying party
shall assume the defense of such action, including the employment of counsel
reasonably satisfactory to the indemnified party and the payment of all fees and
expenses of such counsel, as incurred (except that in the case of any action in
respect of which indemnity may be sought pursuant to both Sections 8(a) and
8(b), the Initial Purchasers shall not be required to assume the defense of such
action pursuant to this Section 8(c), but may employ separate counsel and
participate in the defense thereof, but the fees and expenses of such counsel,
except as provided below, shall be at the expense of the Initial Purchasers).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
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 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 BancAmerica
Xxxxxxxxx Xxxxxxxx, 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 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
18
appropriate to reflect the relative benefits received by the Company and the
Guarantors, on the one hand, and the Initial Purchasers on the other hand from
the offering of the Senior 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 Purchasers, on the other hand, in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Guarantors, on the one hand and the Initial Purchasers, on the other hand, shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Senior Notes (before deducting expenses) received by the
Company, and the total discounts and commissions received by the Initial
Purchasers bear to the total price to investors of the Senior 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 Purchasers, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Guarantors, on the one hand, or the
Initial Purchasers, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Guarantors and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this Section 8(d)
were determined by pro rata allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such indemnified party in connection with investigating or defending any
matter, including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 8, no Initial Purchaser shall be required to contribute any amount in
excess of the amount by which the total discounts and commissions received by
such Initial Purchaser exceeds the amount of any damages which such 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 (even if the Initial Purchasers were treated as one
entity for such purpose). The Initial Purchasers' obligations to contribute
pursuant to this Section 8(d) are several in proportion to the respective
principal amount of Senior Notes purchased by each of the Initial Purchasers
hereunder and not joint.
(e) The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity, provided, however, that the terms of this
Section 8 supersede and replace that certain Indemnity Letter dated October 15,
1997 and such letter is terminated upon consummation of the sale of the Notes to
the Initial Purchasers on the Closing Date and, at such
19
date and time, shall be of no further force or effect with respect to the
offering and sale of the Notes.
9. Conditions of Initial Purchasers' Obligations. The obligations of the
Initial Purchasers to purchase the Senior Notes under this Agreement are subject
to the satisfaction of each of the following conditions:
(a) All the representations and warranties of ENI, 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
Senior Notes than that on which the Senior Notes were marketed.
(c) Since the respective dates as of which information is n 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 ENI, the Company and their
material 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, ENI or any of their subsidiaries and (iii)
neither ENI, the Company nor any of their subsidiaries shall have incurred any
liability or obligation, direct or contingent, the effect of which, in any such
case described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in the reasonable
judgment of BancAmerica Xxxxxxxxx Xxxxxxxx, is material and adverse and, in the
reasonable judgment of BancAmerica Xxxxxxxxx Xxxxxxxx, makes it impracticable to
market the Senior Notes on the terms and in the manner contemplated in the
Offering Memorandum.
(d) You shall have received on the Closing Date a certificate dated
the Closing Date, signed by the President and the Chief Financial Officer of the
Company and the President and the Treasurer of each of the Guarantors,
confirming the matters set forth in Sections 6(cc), 6(kk), 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.
20
(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 Xxxxx
Xxxxx & Xxxxx, counsel for ENI, the Company and the Guarantors, to the effect
that:
(i) each of ENI, the Company and the Guarantors incorporated in
Illinois or Delaware has been duly incorporated and is validly
existing and each such corporation and each other Guarantor is a
corporation in good standing under the laws of its jurisdiction of
incorporation (based solely on certificates of public officials); each
such corporation 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) based solely on certificates of public officials, each of
ENI, the Company and the Guarantors is duly qualified and is in good
standing as a foreign corporation authorized to do business in each of
the states set forth on an Annex to such opinion;
(iii) all of the outstanding shares of capital stock of each of
the Company's subsidiaries are, to the best of such counsel's
knowledge, owned by the Company, and, to the best knowledge of such
counsel, are free and clear of any Lien, other than Liens granted in
connection with the Company's current credit agreement or Liens to be
granted in connection with the Credit Documents and other than Xxxxxxx
& Xxxxxxxx (Mauritius) Private Limited, which is beneficially owned by
the Company;
(iv) the Senior Notes have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Initial Purchasers in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of
the Company, enforceable against the Company in accordance with their
terms;
(v) the Subsidiary Guarantees have been duly authorized and, when
the Senior Notes are executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Initial Purchasers in accordance with the terms of this Agreement, the
Subsidiary Guarantees endorsed thereon will be entitled to the
benefits of the Indenture and will be valid and binding obligations of
the Guarantors, enforceable against the Guarantors in accordance with
their terms;
(vi) 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;
21
(vii) the Repurchase Agreement and each of the Ancillary
Agreements has been duly and validly authorized, executed and
delivered by ENI and the Company, and, assuming due authorization,
execution and delivery by the other parties thereto, constitutes the
valid and binding agreement of the Company, enforceable against ENI
and the Company in accordance with its terms;
(viii) this Agreement has been duly authorized, executed and
delivered by the Company and the Guarantors;
(ix) 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
its terms;
(x) the Exchange Notes have been duly authorized and, if and when
executed, delivered and issued in the Exchange Offer pursuant to and
in the manner contemplated by the Registration Rights Agreement and
authenticated by the Trustee in accordance with the Indenture, will be
entitled to the benefits of the Indenture and will be the valid and
binding obligations of the Company and the Guarantors, enforceable
against them in accordance with their terms;
(xi) the Merger Agreement and the Certificate of Merger have been
duly authorized by all necessary corporate action by the Company and
ENI; upon filing of the Certificate of Merger with the Secretary of
State of Delaware, the merger of the Company with and into ENI will be
effective upon the terms set forth in the Merger Agreement and the
Certificate of Merger; upon effectiveness of such merger, the
Indenture and the Notes will constitute the valid and binding
agreements of ENI, enforceable against ENI in accordance with their
terms;
(xii) the statements under the captions "Certain United States
Federal Tax Consequences," "Recapitalization Transactions," and "Plan
of Distribution" in the Offering Memorandum, insofar as such
statements constitute a summary of legal matters, fairly present in
all material respects such legal matters; the Senior Notes and the
Subsidiary Guarantees conform, in all material respects, as to legal
matters to the description thereof contained in the Offering
Memorandum;
(xiii) the execution, delivery and performance of this Agreement
and each of the other Transaction Documents by ENI, the Company and
each of the Guarantors party thereto, the compliance by ENI, 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
22
qualification with, any court or governmental body or agency
(except such as may be required under federal, state or foreign
securities laws), (ii) conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the
charter or by-laws of ENI as amended in connection with the
Recapitalization Transactions, the Company or any of their
subsidiaries or the other Transaction Documents or any indenture,
loan agreement, mortgage, lease or other agreement or instrument
that is identified (as set forth on a schedule to such opinion)
to such counsel as material to ENI, the Company and their
subsidiaries, taken as a whole, to which ENI, the Company or any
of their subsidiaries is a party or by which ENI, the Company or
any of their subsidiaries or their respective property is bound
(as set forth on a schedule to such opinion), (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 of the United States, Illinois or New York having
jurisdiction over ENI, the Company, any of its subsidiaries or
their respective property, (iv) result in the imposition or
creation of (or the obligation to create or impose) a Lien (other
than Permitted Liens, as defined in the Offering Memorandum)
under, any agreement or instrument (other than the Credit
Documents) to which ENI, the Company or any of their subsidiaries
is a party or by which the Company or any of their subsidiaries
or their respective property is bound, or (v) result in the
termination, suspension or revocation of any Authorization of
ENI, the Company or any of their subsidiaries;
(xiv) other than as set forth in the Offering Memorandum,
after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which ENI, the
Company or any of their subsidiaries is or could be a party or to
which any of their respective property is or could be subject,
which could reasonably be expected to result, singly or in the
aggregate, in a Material Adverse Effect;
(xv) neither ENI, the Company nor any Guarantor is nor,
after giving effect to the offering and sale of the Senior Notes
and the application of the net proceeds thereof as described in
the Offering Memorandum, will be, an "investment company" as such
term is defined in the Investment Company Act of 1940, as
amended;
(xvi) to the best of such counsel's knowledge after due
inquiry, and other than as disclosed in Section 6 of this
Agreement, there are no contracts, agreements or understandings
between ENI, 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 ENI, the Company or such Guarantor or to require
ENI, the Company or such Guarantor to include such securities
with the Notes and Subsidiary Guarantees registered pursuant to
any Registration Statement;
23
(xvii) it is not necessary in connection with the offer,
sale and delivery of the Senior Notes to the Initial Purchasers
in the manner contemplated by this Agreement or in connection
with the Exempt Resales to qualify the Indenture under the TIA;
and
(xviii) no registration under the Act of the Senior Notes
is required for the sale of the Senior Notes or such Guarantees
to the Initial Purchasers as contemplated by this Agreement or
for the Exempt Resales assuming that (i) each Initial Purchasers
is a QIB or an Accredited Institution, each Eligible Purchaser to
whom Senior Notes is sold is a QIB, an Accredited Institution, or
a Regulation S Purchaser, (ii) the accuracy of, and compliance
with, the Initial Purchasers' representations and agreements
contained in Section 7 of this Agreement, (iii) the accuracy of
the representations of the Company and the Guarantors and (iv)
with respect to Accredited Institutions, the accuracy of the
representations made by such Accredited Institutions as set forth
in the letter of representation executed by such Accredited
Institution in the form of Annex A to the Offering Memorandum.
Such opinion shall also include a statement of such counsel to the
effect that such counsel has no reason to believe that, as of the date of the
Offering Memorandum or as of the Closing Date, the Offering Memorandum, as
amended or supplemented, if applicable (except for the financial statements and
other financial and statistical data included therein, as to which such counsel
need not express any belief) contains any untrue statement of a material fact 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.
The opinion of Xxxxx Xxxxx & Xxxxx 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 giving (x) opinions with respect to enforceability,
such counsel may take reasonable exceptions with respect to the effect of
bankruptcy, insolvency, fraudulent conveyance, or similar laws, applicable
limitations on the availability of rights of acceleration or equitable remedies
and public policy considerations with respect to enforceability of
indemnification or contribution provisions under the Federal securities laws,
and (y) the statement with respect to the matters covered by the preceding
paragraph, such counsel may state that their beliefs are based upon their
participation in the preparation of the Offering Memorandum and any amendments
or supplements thereto and review and discussion of the contents thereof, but
are without independent check or verification except as specified.
The Initial Purchasers shall also have received (a) an opinion with
respect to the Guarantors incorporated in West Virginia from West Virginia
counsel reasonably satisfactory to the Initial Purchasers with respect to the
matters set forth in clauses (i), (ii), (v), (vi), (viii), (ix) and (x) with
respect to due authorization above, and (b) an opinion from Xxxxx, Xxxxx & Xxxxx
(which may be included in the opinion described above) that the Senior Credit
Facility and the other Credit Documents have been duly and validly authorized,
executed and delivered, and an opinion that the Senior Credit Facility and the
other Credit Documents constitute enforceable obligations of the Company and the
Guarantors party thereto, which opinion shall be in the form
24
of, and may contain any and all exceptions taken in, the opinion of such firm
delivered on the Closing Date to the lender(s) under the Senior Credit Facility.
(f) The Initial Purchasers shall have received on the Closing Date an
opinion, dated the Closing Date, of Xxxxxx & Xxxxxxx, counsel for the Initial
Purchasers, in form and substance reasonably satisfactory to the Initial
Purchasers.
(g) The Initial Purchasers shall have received, at the time this Agreement
is executed and at the Closing Date, letters dated the date hereof or the
Closing Date, as the case may be, in form and substance reasonably satisfactory
to the Initial Purchasers from Coopers & Xxxxxxx, L.L.P., independent public
accountants, containing the information and statements of the type ordinarily
included in accountants' "comfort letters" to the Initial Purchasers with
respect to the financial statements and certain financial information contained
in the Offering Memorandum.
(h) The Senior Notes shall have been approved by the NASD for trading and
duly listed in PORTAL and by DTC for book entry trading.
(i) The Initial Purchasers shall have received a counterpart, conformed as
executed, of the Indenture which shall have been entered into by the Company,
the Guarantors and the Trustee.
(j) The Company and the Guarantors shall have executed the Registration
Rights Agreement and the Initial Purchasers shall have received an original copy
thereof, duly executed by the Company and the Guarantors.
(k) 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.
(l) All conditions to the consummation of the Recapitalization
Transactions shall have been satisfied (or, with the consent of the Initial
Purchasers in connection with any condition to the Company's obligation to close
the Recapitalization Transactions, waived) and the Recapitalization Transactions
shall be prepared, in the reasonable judgment of the Initial Purchasers and
their counsel, to close on substantially the terms described in the Offering
Memorandum immediately after the issue and sale of the Senior Notes pursuant to
this Agreement.
(m) The Credit Documents shall have been executed and delivered and shall
be effective, on substantially the terms set forth in the Offering Memorandum.
(n) The members of Senior Management (as defined in the Offering
Memorandum) shall have entered into their respective employment agreements on
substantially the terms specified in the Offering Memorandum.
(o) The Initial Purchasers shall have received a report, addressed to
them, from Xxxxxxxx, Xxxxx with respect to the solvency of the Company after
giving effect to
25
the Recapitalization Transactions and the issuance of the Senior Notes, and such
report shall be satisfactory in form and substance to the Initial Purchasers and
their counsel.
(p) The Initial Purchasers shall have received (i) a copy of the amendment
to the Certificate of Incorporation of the Company, to be filed with the
Delaware Secretary of State on the Issue Date, setting forth the maturity date
for the Company's outstanding preferred stock, as December 31, 2007, and
eliminating any requirement for payment of any dividends prior to such date and
(ii) a copy of an agreement of the Principals for the benefit of the Trustee
amending the terms of the preferred stock units to correspond to the terms of
the preferred stock as aforesaid, each, as described in the Offering Memorandum.
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 Purchasers by written notice to the Company from
BancAmerica Xxxxxxxxx Xxxxxxxx if any of the following has occurred: (i) any
outbreak or escalation of hostilities or other national or international
calamity or crisis or change in economic conditions or in the financial markets
of the United States or elsewhere that, in the judgment of BancAmerica Xxxxxxxxx
Xxxxxxxx, is material and adverse and, in the judgment of XxxxXxxxxxx Xxxxxxxxx
Xxxxxxxx, makes it impracticable to market the Senior 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 the opinion of
BancAmerica Xxxxxxxxx Xxxxxxxx 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 the
opinion of BancAmerica Xxxxxxxxx Xxxxxxxx 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 Elgin National Industries, Inc., 0000 Xxxxxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxx
Xxxxx, Xxxxxxxx 00000-1050, (000) 000-0000 and (ii) if to the Initial
Purchasers, c/o BancAmerica Xxxxxxxxx Xxxxxxxx, 000 Xxxxx XxXxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000, 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
Purchasers set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will
26
survive, 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 Purchasers, any person controlling the Initial
Purchasers, the Company, any Guarantor, the officers or directors of the Company
or any Guarantor, or any person controlling the Company or any Guarantor, (ii)
acceptance of the Senior Notes and payment for them hereunder and (iii)
termination of this Agreement.
If for any reason the Senior Notes 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 Purchasers for all out-of-pocket
expenses (including the reasonable fees and disbursements of counsel) incurred
by them, subject to the fee limitations set forth in that certain letter
agreement between BankAmerica Xxxxxxxxx Xxxxxxxx and the Company dated October
15, 1997. 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 each of Initial Purchasers and its officers, directors and each
person, if any, who controls such Initial Purchasers within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act for any and all
reasonable 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 Purchasers, the Initial Purchasers' 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 Senior Notes from the Initial Purchasers
merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
27
Please confirm that the foregoing correctly sets forth the purchase
agreement among the Company, the Guarantors and the Initial Purchasers.
Very truly yours,
ELGIN NATIONAL INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman and CEO
ENI HOLDING CORP.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman, President and CEO
XXXXX MACHINE COMPANY
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
XXXXXX SCREEN AND
MANUFACTURING, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
TRANSERVICE INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
CENTRIFUGAL SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman, President and CEO
MINING CONTROLS, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
CLINCH RIVER CORPORATION
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
XXXXXXX & XXXXXXXX COMPANY
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman and CEO
2
XXXXX ASSOCIATES, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
BANCAMERICA XXXXXXXXX XXXXXXXX
By: /s/ Xxxxxx X. XxXxxxx
-----------------------------
Name: Xxxxxx X. XxXxxxx
Title: Managing Director
CIBC WOOD GUNDY SECURITIES CORP.
By: /s/ Xxxxxx Xxxx
-----------------------------
Name: Xxxxxx Xxxx
Title: Managing Director
3
SCHEDULE A
Guarantors State of Incorporation
---------- ----------------------
Xxxxx Machine Company West Virginia
Norris Screen and Manufacturing, Inc. West Virginia
TranService Inc. Delaware
Centrifugal Services, Inc. Illinois
Mining Controls, Inc. Delaware
Clinch River Corporation Xxxxxxxx
Xxxxxxx & Xxxxxxxx Company Delaware
Xxxxx Associates, Inc. Delaware
S-1
SCHEDULE B
Initial Purchasers Principal Amount
------------------ of Notes
----------------
BancAmerica Xxxxxxxxx Xxxxxxxx................................... $59,500,000
CIBC Wood Gundy Securities Corp.................................. $25,500,000
-----------
Total......................................................... $85,000,000
===========
S-2
SCHEDULE C
SUBSIDIARIES OF ENI HOLDING CORPORATION
Elgin National Industries, Inc. Delaware
GUARANTORS
Xxxxx Machine Company West Virginia
Norris Screen and Manufacturing, Inc. West Virginia
TranService Inc. Delaware
Centrifugal Services, Inc. Illinois
Mining Controls, Inc. Delaware
Clinch River Corporation Xxxxxxxx
Xxxxxxx & Xxxxxxxx Company Delaware
Xxxxx Associates, Inc. Delaware
OTHER SUBSIDIARIES
Xxxxxx Construction Company (inactive) Delaware
Centrifugal and Mechanical Industries Inc.(inactive) Delaware
Xxxxxxxx Products, Inc. (inactive) Delaware
ENI International, Inc. Barbados
Ohio Rod Products Company (inactive) Delaware
Xxxxxxx & Xxxxxxxx Australia Pty Ltd Australia
Xxxxxxx & Xxxxxxxx Company, Ltd. (inactive) Canada
Xxxxxxx & Xxxxxxxx Engineering Private Ltd. India Offshore company
Xxxxxxx & Xxxxxxxx (Mauritius) Private Limited Mauritius company
Xxxxxxxx-Xxxxxxxx Construction Company, Inc.(inactive) New York
A-1
