Exhibit (a) 14
Building One Services Corporation
$200,000,000
% Senior Subordinated Notes due 2009
PURCHASE AGREEMENT
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April 23, 1999
BT ALEX. BROWN INCORPORATED
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
FLEET SECURITIES, INC.
c/o BT ▇▇▇▇. ▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Building One Services Corporation, a Delaware corporation (the
"Company"), hereby confirms its agreement with you (the "Initial Purchasers"),
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as set forth below.
1. The Securities. Subject to the terms and conditions herein
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contained, the Company proposes to issue and sell to the Initial Purchasers (the
"Offering") $200,000,000 aggregate principal amount of its 10 1/2% Senior
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Subordinated Notes due 2009 (the "Notes"). The Notes will be unconditionally
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guaranteed (the "Guarantees", and together with the Notes, the "Securities") on
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a senior subordinated basis by all of the Company's subsidiaries (the
"Guarantors" and collectively with the Company, the "Issuers"). The Securities
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are to be issued under an indenture (the "Indenture") to be dated as of
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April 30, 1999 by and between the Issuers and IBJ Whitehall Bank & Trust
Company, as Trustee (the "Trustee").
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The Securities will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the
"Act"), in reliance on exemptions therefrom.
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In connection with the sale of the Securities, the Company has
prepared a preliminary offering memorandum dated April 6, 1999 (the "Preliminary
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Memorandum"), and a final offering memorandum dated April 23, 1999 (the "Final
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Memorandum"; the Preliminary Memorandum and the Final Memorandum each herein
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being referred to as a "Memorandum") relating to the Company, the Guarantors and
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the Securities.
The Notes are being sold in connection with the Company's tender offer
for up to 25.5 million shares of its outstanding common stock, including shares
underlying stock options (the "Tender Offer"), pursuant to the Company's offer
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to purchase dated February 19, 1999, as amended.
The Company and the Guarantors will enter into an agreement (the
"Credit Agreement") with Bankers Trust Company, as agent, and certain lenders
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thereto whereby the Company will be provided with a $225 million revolving
credit facility and a $125 million term loan.
The Company has entered into an agreement with Boss Investment, LLC
("Boss Investment"), an affiliate of Apollo Management, L.P., pursuant to which
the Company has agreed to issue and sell to Boss Investment $100 million
aggregate principal amount of its 7 1/2% Convertible Junior Subordinated Notes
(the "Convertible Subordinated Notes").
The Offering, the Tender Offer, the sale of the Convertible
Subordinated Notes and the related borrowings under the Credit Agreement are
collectively referred to as the "Transactions."
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The Initial Purchasers and their direct and indirect transferees of
the Securities will be entitled to the benefits of the Registration Rights
Agreement, substantially in the form attached hereto as Exhibit A (the
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"Registration Rights Agreement"), pursuant to which the Issuers have agreed,
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among other things, to file a registration statement (the "Registration
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Statement") with the Securities and Exchange Commission (the "Commission")
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registering the Securities or the Exchange Notes (as defined in the Registration
Rights Agreement) under the Act.
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2. Representations and Warranties. Each of the Issuers represents
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and warrants to and agrees with each of the Initial Purchasers that:
(a) The Preliminary Memorandum and the Final Memorandum did not, as
of their respective dates, and any amendment or supplement thereto will not as
of its date contain any untrue statement of a material fact or omit 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, and the Final
Memorandum, as amended or supplemented as of the Closing Date (as defined in
Section 3 below) will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in the
light of the circumstances existing as of the Closing Date, not misleading,
except that the representations and warranties set forth in this Section 2(a) do
not apply to statements or omissions made in reliance upon and in conformity
with information relating to any of the Initial Purchasers furnished to the
Company in writing by the Initial Purchasers expressly for use in the
Preliminary Memorandum, the Final Memorandum or any amendment or supplement
thereto.
(b) As of the Closing Date, the Company will have the authorized,
issued and outstanding capitalization set forth in the Final Memorandum, except
for issuances, if any, pursuant to employee or director benefits plans or the
exercise of any warrants disclosed in the Final Memorandum and except to the
extent that the number of shares of capital stock of the Company acquired in the
Tender Offer is not equal to 24.6 million shares; all of the subsidiaries of the
Company are listed in Schedule 2 attached hereto (each, a "Subsidiary" and
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collectively, the "Subsidiaries"); all of the outstanding shares of capital
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stock or ownership interests of the Subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable (other than
partnership interests) and were not issued in violation of any preemptive or
similar rights; all of the outstanding shares of capital stock or ownership
interests of each of the Subsidiaries (except for Engineering Design Group,
Inc.) are owned, directly or indirectly, by the Company and will be free and
clear of all liens, encumbrances, equities and claims or restrictions on
transferability (other than those imposed by the Act and the securities or "Blue
Sky" laws of certain jurisdictions and other than liens pursuant to the Credit
Agreement) or voting; except as set forth in the Final Memoran-
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dum, there are no (i) options, warrants or other rights to purchase, other than
options or rights granted under employee or director benefits plans, (ii)
agreements or other obligations to issue or (iii) other rights to convert any
obligation into, or exchange any securities for, shares of capital stock of or
ownership interests in the Company or any of the Subsidiaries outstanding;
except as set forth in the Final Memorandum, there are no holders of securities
of the Company or any Subsidiary that are entitled to have such Securities
registered under a registration statement filed by the Company pursuant to the
Registration Rights Agreement.
(c) Each of the Company and the Subsidiaries is duly incorporated or
organized, as the case may be, validly existing and in good standing under the
laws of its respective jurisdiction of incorporation or organization and has all
requisite corporate or organizational power and authority to own its properties
and conduct its business as now conducted and as described in the Final
Memorandum; each of the Company and the Subsidiaries is duly qualified to do
business as a foreign corporation in good standing in all other jurisdictions
where the ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified would
not, individually or in the aggregate, reasonably be expected to have a material
adverse effect on the business, condition (financial or otherwise), or results
of operations of the Company and the Subsidiaries, taken as a whole (any such
event, a "Material Adverse Effect").
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(d) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Notes, the Exchange Notes
and the Private Exchange Notes (as defined in the Registration Rights
Agreement). Each of the Guarantors has all requisite corporate power and
authority to execute, deliver and perform its obligations under the Guarantees
and the guarantees of the Exchange Notes and the Private Exchange Notes. The
Notes and the Guarantees, when issued, will be in the form contemplated by the
Indenture. The Notes, the Exchange Notes and the Private Exchange Notes, have
each been, or as of the Closing Date will be, duly and validly authorized by the
Company and the Guarantors and the Guarantees, and the guarantees of the
Exchange Notes and the Private Exchange Notes have been, or as of the Closing
Date will be,
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duly and validly authorized by the Guarantors, and, when executed by the Company
and the Guarantors, respectively, and authenticated and delivered by the Trustee
in accordance with the provisions of the Indenture (and assuming the due
authorization, execution and delivery of the Indenture by the Trustee) and when
the Notes and the Guarantees are delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement or the Exchange Notes
or the Private Exchange Notes (and the related guarantees) are issued in
accordance with the Registration Rights Agreement and the Indenture in exchange
for the Notes, will constitute valid and legally binding obligations of each of
the Company and the Guarantors, as the case may be, entitled to the benefits of
the Indenture, and enforceable against each of the Company and the Guarantors,
as the case may be, in accordance with their terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally, and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be brought.
(e) Each of the Issuers has all requisite corporate power and
authority to execute, deliver and perform its obligations under the Indenture.
The Indenture meets the requirements for qualification under the Trust Indenture
Act of 1939, as amended (the "TIA"). The Indenture has been, or as of the
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Closing Date will be, duly and validly authorized by each of the Issuers and,
when executed and delivered by each of the Issuers (assuming the due
authorization, execution and delivery by the Trustee), will constitute a valid
and legally binding agreement of each of the Issuers, enforceable against each
of the Issuers in accordance with its terms, except that the enforcement thereof
may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be brought.
(f) Each of the Issuers has all requisite corporate power and
authority to execute, deliver and perform its obligations under the Registration
Rights Agreement. The Registra-
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tion Rights Agreement has been, or as of the Closing Date will be, duly and
validly authorized by each of the Issuers and, when executed and delivered by
each of the Issuers (assuming the due authorization, execution and delivery
thereof by the Initial Purchasers), will constitute a valid and legally binding
agreement of each of the Issuers, enforceable against each of the Issuers in
accordance with its terms, except that (A) the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be brought and
(B) any rights to indemnity or contribution thereunder may be limited by federal
and state securities laws and public policy considerations.
(g) Each of the Issuers has all requisite corporate power and
authority to execute, deliver and perform its respective obligations under this
Agreement and to consummate the transactions contemplated hereby. This
Agreement and the consummation by each of the Issuers of the transactions
contemplated hereby have been, or as of the Closing Date will be, duly and
validly authorized by each of the Issuers. This Agreement has been duly
executed and delivered by each of the Issuers.
(h) The Credit Agreement has been, or as of the Closing Date will be,
duly and validly authorized by each of the Issuers and, when executed and
delivered by each of the Issuers (assuming the due authorization, execution and
delivery by the lenders thereof), will constitute a valid and legally binding
agreement of each of the Issuers, enforceable against each of the Issuers in
accordance with its terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before which any proceeding
therefore may be brought.
(i) The Company and each of the Guarantors has all requisite
corporate or partnership power and authority to enter into the Transactions (to
the extent each is a party thereto).
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(j) Assuming the accuracy of the representations and warranties of
the Initial Purchasers in Section 8 hereof, no consent, approval, authorization
or order of any court or governmental agency or body, or third party is required
for the issuance and sale by the Issuers of the Securities to the Initial
Purchasers or the consummation by the Issuers of the other Transactions, except
such as have been obtained and such as may be required under state securities or
"Blue Sky" laws in connection with the purchase and resale of the Securities by
the Initial Purchasers and such as may be required in connection with the other
Transactions. None of the Company or the Subsidiaries is (i) in violation of
its certificate of incorporation or bylaws (or similar organizational document),
(ii) in breach or violation of any statute, judgment, decree, order, rule or
regulation applicable to any of them or any of their respective properties or
assets, except for any such breach or violation which would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect, or
(iii) in breach of or default under (nor has any event occurred which, with
notice or passage of time or both, would constitute a default under) or in
violation of any of the terms or provisions of any indenture, mortgage, deed of
trust, loan agreement, note, lease, license, franchise agreement, permit,
certificate, contract or other agreement or instrument to which any of them is a
party or to which any of them or their respective properties or assets is
subject (collectively, "Contracts"), except for any such breach, default,
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violation or event which would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(k) The execution, delivery and performance by the Issuers of this
Agreement, the Indenture, the Registration Rights Agreement and the Credit
Agreement and the consummation by the Issuers of the Transactions (to the extent
each is a party thereto) and the transactions contemplated hereby and thereby
(including, without limitation, the issuance and sale of the Securities to the
Initial Purchasers) will not conflict with or constitute or result in a breach
of or a default under (or an event which with notice or passage of time or both
would constitute a default under) or violation of any of (i) the terms or
provisions of any Contract, except for any such conflict, breach, violation,
default or event which would not, individually or in the aggregate, reasonably
be expected to have
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a Material Adverse Effect, (ii) the certificate of incorporation or bylaws (or
similar organizational document) of the Company or any of the Subsidiaries, or
(iii) (assuming compliance with the Act with respect to the transactions
contemplated by the Registration Rights Agreement and all applicable state
securities or "Blue Sky" laws and assuming the accuracy of the representations
and warranties of the Initial Purchasers in Section 8 hereof) any statute,
judgment, decree, order, rule or regulation applicable to the Company or any of
the Subsidiaries or any of their respective properties or assets, except for any
such conflict, breach or violation which would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(l) The audited consolidated financial statements of the Company and
the Subsidiaries included in the Final Memorandum present fairly in all material
respects the financial position, results of operations and cash flows of the
Company and the Subsidiaries at the dates and for the periods to which they
relate in accordance with generally accepted accounting principles applied on a
consistent basis, except as otherwise stated therein. The summary and selected
financial and statistical data in the Final Memorandum have been prepared and
compiled on a basis consistent with the audited financial statements included
therein, except as otherwise stated therein. Each of PricewaterhouseCoopers,
LLP, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC, ▇▇▇▇▇▇▇▇, Hucovski & Company and ▇▇▇▇▇, ▇▇▇▇▇▇ &
Company (collectively, the "Independent Accountants") is an independent public
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accounting firm within the meaning of the Act and the rules and regulations
promulgated thereunder.
(m) The pro forma financial statements (including the notes thereto)
(i) comply as to form in all material respects with the applicable requirements
of Regulation S-X promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), (ii) have been prepared in accordance with the
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Commission's rules with respect to pro forma financial statements, and (iii)
have been properly computed on the bases described therein; the assumptions used
in the preparation of the pro forma financial data and other pro forma financial
information included in the Final Memorandum are reasonable and the adjustments
used therein are appropriate to give effect to the transactions or circumstances
referred to therein.
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(n) There is not pending or, to the knowledge of the Issuers,
threatened any action, suit, proceeding, inquiry or investigation to which the
Company or any of the Subsidiaries is a party, or to which the property or
assets of the Company or any of the Subsidiaries are subject, before or brought
by any court, arbitrator or governmental agency or body which, if determined
adversely to the Company or any of the Subsidiaries, would, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect or which
seeks to restrain, enjoin, prevent the consummation of or otherwise challenge
the issuance or sale of the Securities to be sold hereunder or the consummation
of the other transactions described in the Final Memorandum.
(o) Each of the Company and the Subsidiaries possesses all licenses,
permits, certificates, consents, orders, approvals and other authorizations
from, and has made all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory organizations and all
courts and other tribunals, presently required or necessary to own or lease, as
the case may be, and to operate its respective properties and to carry on its
respective businesses as now or proposed to be conducted as set forth in the
Final Memorandum ("Permits"), except where the failure to obtain such Permits
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would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; each of the Company and the Subsidiaries has fulfilled
and performed all of its obligations with respect to such Permits, except where
the failure to so fulfill or perform such obligations would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect; and
no event has occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such Permit, except where such
revocation, termination or impairment would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; and none of
the Company or the Subsidiaries has received any notice of any proceeding
relating to revocation or modification of any such Permit, except as described
in the Final Memorandum and except where such revocation or modification would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
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(p) Since the date of the most recent financial statements appearing
in the Final Memorandum, except as described therein, (i) none of the Company or
the Subsidiaries has incurred any liabilities or obligations, direct or
contingent, or entered into or agreed to enter into any transactions or
contracts (written or oral) not in the ordinary course of business which
liabilities, obligations, transactions or contracts would, individually or in
the aggregate, be material to the business, condition (financial or otherwise),
or results of operations of the Companies and its Subsidiaries, taken as a
whole, (ii) none of the Company or the Subsidiaries has purchased any of its
outstanding capital stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock (other than, with respect to any
of such Subsidiaries, the purchase of, or dividend or distribution on, capital
stock owned by the Company) and (iii) there shall not have been any change in
the capital stock or long-term indebtedness of the Company or the Subsidiaries
other than pursuant to the employee or benefit plans.
(q) Each of the Company and the Subsidiaries has filed all necessary
federal, state and foreign income and franchise tax returns, except where the
failure to so file such returns would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect or where such filing is
being contested in good faith, and has paid all taxes shown as due thereon; and
other than tax deficiencies which the Company or any Subsidiary is contesting in
good faith and for which the Company or such Subsidiary has provided adequate
reserves, there is no tax deficiency that has been asserted against the Company
or any of the Subsidiaries that would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(r) The statistical and market-related data included in the Final
Memorandum are based on or derived from sources which the Issuers believe to be
reliable and accurate.
(s) None of the Company, the Subsidiaries or any agent acting on
their behalf (except that no representation or warranty is made with respect to
the Initial Purchasers) has taken or will take any action that might cause this
Agreement or the sale of the Securities to violate Regulation T, U or X
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of the Board of Governors of the Federal Reserve System, in each case as in
effect, or as the same may hereafter be in effect, on the Closing Date.
(t) Each of the Company and the Subsidiaries has good and marketable
title to all real property and good title to all personal property described in
the Final Memorandum as being owned by it and good and marketable title to a
leasehold estate in the real and personal property described in the Final
Memorandum as being leased by it free and clear of all liens, charges,
encumbrances or restrictions, except as described in the Final Memorandum or to
the extent the failure to have such title or the existence of such liens,
charges, encumbrances or restrictions would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. All
leases, contracts and agreements to which the Company or any of the Subsidiaries
is a party or by which any of them is bound are valid and enforceable against
the Company or such Subsidiary, and are valid and enforceable against the other
party or parties thereto and are in full force and effect with only such
exceptions as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Company and the Subsidiaries
own or possess adequate licenses or other rights to use all patents, trademarks,
service marks, trade names, copyrights and know-how ("Intellectual Property")
necessary to conduct the businesses now or proposed to be operated by them as
described in the Final Memorandum, except where the failure to own or possess
such Intellectual Property would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, and none of the
Company or the Subsidiaries has received any notice of infringement of or
conflict with (or knows of any such infringement of or conflict with) asserted
rights of others with respect to any Intellectual Property which, if such
assertion of infringement or conflict were sustained, would reasonably be
expected to have a Material Adverse Effect.
(u) There are no legal or governmental proceedings involving or
affecting the Company or any Subsidiary or any of their respective properties or
assets which would be required to be described in a prospectus pursuant to the
Act that are not described in the Final Memorandum, nor are there any material
contracts or other documents which would be required to be
11
described in a prospectus pursuant to the Act that are not described in the
Final Memorandum.
(v) Except as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect (A) each of the Company and the
Subsidiaries is in compliance with and not subject to liability under applicable
Environmental Laws (as defined below), (B) each of the Company and the
Subsidiaries has made all filings and provided all notices required under any
applicable Environmental Law, and has and is in compliance with all Permits
required under any applicable Environmental Laws and each of them is in full
force and effect, (C) there is no civil, criminal or administrative action,
suit, demand, claim, hearing, notice of violation, investigation, proceeding,
notice or demand letter or request for information pending or, to the knowledge
of the Company or any of the Subsidiaries, threatened against the Company or any
of the Subsidiaries under any Environmental Law, (D) no lien, charge,
encumbrance or restriction has been recorded under any Environmental Law with
respect to any assets, facility or property owned, operated, leased or
controlled by the Company or any of the Subsidiaries, (E) none of the Company or
the Subsidiaries has received notice that it has been identified as a
potentially responsible party under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA") or any comparable
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state law, (F) no property or facility of the Company or any of the Subsidiaries
is (i) listed or proposed for listing on the National Priorities List under
CERCLA or is (ii) listed in the Comprehensive Environmental Response,
Compensation, Liability Information System List promulgated pursuant to CERCLA,
or on any comparable list maintained by any state or local governmental
authority.
For purposes of this Agreement, "Environmental Laws" means the common
law and all applicable federal, state and local laws or regulations, codes,
orders, decrees, judgments or injunctions issued, promulgated, approved or
entered thereunder, relating to pollution or protection of public or employee
health and safety or the environment, including, without limitation, laws
relating to (i) emissions, discharges, releases or threatened releases of
hazardous materials into the environment (including, without limitation, ambient
air, surface water, ground water, land surface or subsurface strata), (ii) the
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manufacture, processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of hazardous materials, and (iii) underground
and above ground storage tanks and related piping, and emissions, discharges,
releases or threatened releases therefrom.
(w) There is no strike, labor dispute, slowdown or work stoppage with
the employees of the Company or any of the Subsidiaries which is pending or, to
the knowledge of the Company or any of the Subsidiaries, threatened except for
any such event that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(x) Each of the Company and the Subsidiaries carries insurance in
such amounts and covering such risks as it believes is adequate for the conduct
of its business and the value of its properties.
(y) None of the Company or the Subsidiaries has any liability for any
prohibited transaction or funding deficiency or any complete or partial
withdrawal liability with respect to any pension, profit sharing or other plan
which is subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), to which the Company or any of the Subsidiaries makes or ever
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has made a contribution and in which any employee of the Company or of any
Subsidiary is or has ever been a participant, except for any liability which
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. With respect to such plans, the Company and each
Subsidiary is in compliance in all material respects with all applicable
provisions of ERISA.
(z) Each of the Company and the Subsidiaries (i) makes and keeps
books and records which, in reasonable detail, accurately and fairly reflect the
transactions and dispositions of their assets and (ii) maintains internal
accounting controls which provide reasonable assurance that (A) transactions are
executed in accordance with management's authorization, (B) transactions are
recorded as necessary to permit preparation of its financial statements and to
maintain accountability for its assets, (C) access to its assets is permitted
only in accordance with management's authorization and (D) the reported ac-
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countability for its assets is compared with existing assets at reasonable
intervals.
(aa) None of the Company or the Subsidiaries is or after giving
effect to the Transactions will be an "investment company" or "promoter" or
"principal underwriter" for an "investment company," as such terms are defined
in the Investment Company Act of 1940, as amended, and the rules and regulations
thereunder.
(bb) The Securities, the Indenture and the Registration Rights
Agreement will on the Closing Date conform in all material respects to the
descriptions thereof in the Final Memorandum.
(cc) No holder of securities of the Company or any Subsidiary will be
entitled to have such securities registered under the registration statements
required to be filed by the Company pursuant to the Registration Rights
Agreement other than as expressly permitted thereby.
(dd) Immediately after the consummation of the Transactions, the fair
value and present fair saleable value of the assets of the Issuers (on a
consolidated basis) will exceed the sum of their stated liabilities and
identified contingent liabilities; the Issuers (on a consolidated basis) will
not be, after giving effect to the execution, delivery and performance of this
Agreement, and the consummation of the Transactions, (a) left with unreasonably
small capital with which to carry on their business as it is proposed to be
conducted, (b) unable to pay their debts (contingent or otherwise) as they
mature or (c) otherwise insolvent.
(ee) None of the Company, the Subsidiaries or any of their respective
Affiliates (as defined in Rule 501(b) of Regulation D under the Act) has
directly, or through any agent (except that no representation or warranty is
made with respect to the Initial Purchasers), (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any "security"
(as defined in the Act) which is or could be integrated with the sale of the
Securities in a manner that would require the registration under the Act of the
Securities or (ii) engaged in any form of general solicitation or general ad-
14
vertising (as those terms are used in Regulation D under the Act) in connection
with the offering of the Securities or in any manner involving a public
offering of the Securities within the meaning of Section 4(2) of the Act.
Assuming the accuracy of the representations and warranties of the Initial
Purchasers in Section 8 hereof, it is not necessary in connection with (i) the
offer, sale and delivery of the Securities to the Initial Purchasers in the
manner contemplated by this Agreement or (ii) the resales of the Securities by
the Initial Purchasers as described in the Final Memorandum to register any of
the Securities under the Act or to qualify the Indenture under the TIA.
(ff) No securities of the Company or any Subsidiary are of the same
class (within the meaning of Rule 144A under the Act) as the Securities and
listed on a national securities exchange registered under Section 6 of the
Exchange Act, or quoted in a U.S. automated inter-dealer quotation system.
(gg) None of the Company or the Subsidiaries has taken, nor will any
of them take, directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or manipulation of the
price of the Securities.
(hh) None of the Company, the Subsidiaries, any of their respective
Affiliates or any person acting on its or their behalf (other than the Initial
Purchasers) has engaged or will engage in any directed selling efforts (as that
term is defined in Regulation S under the Act ("Regulation S") with respect to
------------
the Securities; the Company, the Subsidiaries and their respective Affiliates
and any person acting on its or their behalf (other than the Initial Purchasers)
have complied with the offering restrictions requirement of Regulation S.
(ii) The Company has delivered to the Initial Purchasers a true and
correct copy of each of the documents contemplated by the Transactions, together
with all related agreements and all schedules and exhibits thereto, and there
shall have been no material amendments, alterations, modifications or waivers of
any of the provisions of any such documents since their respective dates of
execution, other than any such amendments, alterations, modifications and
waivers as to which the Initial Purchasers have been advised in writing and
which would be re-
15
quired to be disclosed in a prospectus pursuant to the Act; and to the best
knowledge of the Issuers there exists no event or condition which would
constitute a default or an event of default under any of the documents
contemplated by the Transactions which would reasonably be expected to result in
a Material Adverse Effect or materially adversely affect the ability of the
Issuers to consummate the Transactions (to the extent each is a party thereto).
Any certificate signed by any officer of the Company or any Subsidiary
and delivered to any Initial Purchaser or to counsel for the Initial Purchasers
shall be deemed a joint and several representation and warranty by the Company
and each of the Subsidiaries to each Initial Purchaser as to the matters covered
thereby.
3. Purchase, Sale and Delivery of the Securities. On the basis of
---------------------------------------------
the representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Initial Purchasers, and the Initial Purchasers, acting
severally and not jointly, agree to purchase the Securities in the respective
amounts set forth on Schedule 1 hereto from the Company at 94.746% of their
----------
principal amount. On the Closing Date, one or more certificates in definitive
form for the Securities that the Initial Purchasers have agreed to purchase
hereunder, and in such denomination or denominations and registered in such name
or names as the Initial Purchasers request upon notice to the Company at least
36 hours prior to the Closing Date, shall be delivered by or on behalf of the
Company to the Initial Purchasers, against payment by or on behalf of the
Initial Purchasers of the purchase price therefor by wire transfer (same day
funds), net of the overnight cost of such funds, to such account or accounts as
the Company shall specify prior to the Closing Date, or by such means as the
parties hereto shall agree prior to the Closing Date. Such delivery of and
payment for the Securities shall be made at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at 10:00 A.M., New York time, on
, 1999, or at such other place, time or date as the Initial Purchasers, on the
one hand, and the Company, on the other hand, may agree upon, such time and date
of delivery against payment being herein referred to as the "Closing Date." The
------------
Company will make such certificate or
-16-
certificates for the Securities available for checking and packaging by the
Initial Purchasers at the offices of BT ▇▇▇▇. ▇▇▇▇▇ Incorporated in New York,
New York, or at such other place as BT ▇▇▇▇. ▇▇▇▇▇ Incorporated may designate,
at least 18 hours prior to the Closing Date.
4. Offering by the Initial Purchasers. The Initial Purchasers
----------------------------------
propose to make an offering of the Securities at the price and upon the terms
set forth in the Final Memorandum, as soon as practicable after this Agreement
is entered into and as in the judgment of the Initial Purchasers is advisable.
5. Covenants of the Issuers. Each of the Issuers covenants and
------------------------
agrees with each of the Initial Purchasers that:
(a) The Issuers will not amend or supplement the Final Memorandum or
any amendment or supplement thereto of which the Initial Purchasers shall not
previously have been advised and furnished a copy for a reasonable period of
time prior to the proposed amendment or supplement and as to which the Initial
Purchasers shall have reasonably objected within two business days after being
provided a copy of such amendment or supplement, unless in the opinion of
counsel to the Issuers such amendment or supplement is required by law. The
Issuers will promptly, upon the reasonable request of the Initial Purchasers or
counsel for the Initial Purchasers, make any amendments or supplements to the
Final Memorandum that may be necessary or advisable in connection with the
resale of the Securities by the Initial Purchasers.
(b) The Issuers will cooperate with the Initial Purchasers in
arranging for the qualification of the Securities for offering and sale under
the securities or "Blue Sky" laws of such jurisdictions as the Initial
Purchasers may designate and will continue such qualifications in effect for as
long as may be necessary to complete the resale of the Securities; provided,
--------
however, that in connection therewith, none of the Issuers shall be required to
-------
qualify as a foreign corporation or to execute a general consent to service of
process in any jurisdiction or subject itself to taxation in excess of a nominal
dollar amount in any such jurisdiction where it is not then so subject.
-17-
(c) If, at any time prior to the completion of the distribution by
the Initial Purchasers of the Securities, any event occurs or information
becomes known as a result of which the Final Memorandum as then amended or
supplemented would include any untrue statement of a material fact, or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if for any
other reason it is necessary at any time to amend or supplement the Final
Memorandum to comply with applicable law, the Issuers will promptly notify the
Initial Purchasers thereof and will prepare, at the expense of the Issuers, an
amendment or supplement to the Final Memorandum that corrects such statement or
omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial
Purchasers and to counsel for the Initial Purchasers as many copies of the
Preliminary Memorandum and the Final Memorandum or any amendment or supplement
thereto as the Initial Purchasers may reasonably request.
(e) Prior to the Closing Date, the Issuers will furnish to the
Initial Purchasers, as soon as they have been prepared, a copy of any unaudited
consolidated interim financial statements of the Company for any period
subsequent to the period covered by the most recent financial statements
appearing in the Final Memorandum.
(f) None of the Company or any of its Affiliates will sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any
"security" (as defined in the Act) which could be integrated with the sale of
the Securities in a manner which would require the registration under the Act of
the Securities.
(g) The Issuers will not, and will not permit any of the Subsidiaries
to, engage in any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Act) in connection with the offering of
the Securities or in any manner involving a public offering of the Securities
within the meaning of Section 4(2) of the Act.
(h) For so long as any of the Securities remain outstanding and are
"restricted securities" within the meaning of
-18-
Rule 144(a)(3) under the Act, the Company will make available at its expense,
upon request, to any holder of such Securities and any prospective purchasers
thereof the information specified in Rule 144A(d)(4) under the Act, unless the
Company is then subject to Section 13 or 15(d) of the Exchange Act.
(i) The Issuers will use their respective best efforts to (i) permit
the Securities to be designated PORTAL securities in accordance with the rules
and regulations adopted by the NASD relating to trading in the Private
Offerings, Resales and Trading through Automated Linkages market (the "Portal
------
Market") and (ii) permit the Securities to be eligible for clearance and
------
settlement through The Depository Trust Company.
(j) In connection with Securities offered and sold in an offshore
transaction (as defined in Regulation S) the Issuers will comply with the
provisions of Regulation S, including the prohibition on directed selling
efforts, will not register any transfer of such Securities not made in
accordance with the provisions of Regulation S and will not, except in
accordance with the provisions of Regulation S, if applicable, issue any such
Securities in the form of definitive securities.
(k) The Company shall apply the net proceeds from the sale of the
Notes, the sale of the Convertible Subordinated Notes and borrowings under the
Credit Agreement to the purchase of its Common Stock pursuant to the Tender
Offer and take all other steps as are reasonably necessary to consummate the
Tender Offer, in each case as soon as is reasonably practicable after the Issue
Date.
6. Expenses. The Issuers agree to pay all costs and expenses
--------
incident to the performance of their obligations under this Agreement, whether
or not the transactions contemplated herein are consummated or this Agreement is
terminated pursuant to Section 11 hereof, including all costs and expenses
incident to (i) the printing, word processing or other production of documents
with respect to the transactions contemplated hereby, including any costs of
printing the Preliminary Memorandum and the Final Memorandum and any amendment
or supplement thereto, and any "Blue Sky" memoranda, (ii) all arrangements
relating to the delivery to the Initial Purchasers of copies of the foregoing
documents, (iii) the fees and disbursements of the counsel,
-19-
the accountants and any other experts or advisors retained by the Issuers, (iv)
preparation (including printing), issuance and delivery to the Initial
Purchasers of the Securities, (v) the qualification of the Securities under
state securities and "Blue Sky" laws, including filing fees and fees and
disbursements of counsel for the Initial Purchasers relating thereto, (vi)
expenses in connection with any meetings with prospective investors in the
Securities, (vii) fees and expenses of the Trustee including fees and expenses
of counsel, (viii) all expenses and listing fees incurred in connection with the
application for quotation of the Securities on the PORTAL Market and (ix) any
fees charged by investment rating agencies for the rating of the Securities. If
the sale of the Securities provided for herein is not consummated because any
condition to the obligations of the Initial Purchasers set forth in Section 7
hereof is not satisfied, because this Agreement is terminated or because of any
failure, refusal or inability on the part of the Issuers to perform all
obligations and satisfy all conditions on their part to be performed or
satisfied hereunder (other than solely by reason of a default by the Initial
Purchasers of their obligations hereunder after all conditions hereunder have
been satisfied in accordance herewith), the Issuers agree to promptly reimburse
the Initial Purchasers upon demand for all reasonable out-of-pocket expenses
(including fees, disbursements and charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel
for the Initial Purchasers) that shall have been incurred by the Initial
Purchasers in connection with the proposed purchase and sale of the Securities.
7. Conditions of the Initial Purchasers' Obligations. The obligation
-------------------------------------------------
of the Initial Purchasers to purchase and pay for the Securities shall, in their
sole discretion, be subject to the satisfaction or waiver of the following
conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received
the opinion, dated as of the Closing Date and addressed to the Initial
Purchasers, of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel for the Issuers and the
local counsel listed in Schedule 3 attached hereto, in form and substance
satisfactory to counsel for the Initial Purchasers, to the effect that:
-20-
(i) Each of the Company and the Subsidiaries is duly incorporated
or organized, validly existing and in good standing under the laws of its
respective jurisdiction of incorporation or organization and has all
requisite corporate or organizational power and authority to own its
properties and to conduct its business as described in the Final
Memorandum. Each of the Company and the Subsidiaries is duly qualified to
do business as a foreign corporation in good standing in all other
jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(ii) The Company has the authorized capitalization set forth in the
Final Memorandum; all of the outstanding shares of capital stock or
ownership interests of the Subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable (other than partnership
interest) and were not issued in violation of any preemptive or similar
rights; all of the outstanding shares of capital stock or ownership
interests of the Subsidiaries (except for Engineering Design Group, Inc.)
are owned, directly or indirectly, by the Company, free and clear of all
perfected security interests and, to the knowledge of such counsel, free
and clear of all other liens, encumbrances, equities and claims or
restrictions on transferability (other than those imposed by the Act and
the securities or "Blue Sky" laws of certain jurisdictions and other than
liens pursuant to the Credit Agreement) or voting.
(iii) Except as set forth in the Final Memorandum (A) no options,
warrants or other rights to purchase from the Company or any Subsidiary
shares of capital stock or ownership interests in the Company or any
Subsidiary are outstanding other than pursuant to employee or director
benefit plans, (B) no agreements or other obligations to issue, or other
rights to convert any obligation into, or exchange any securities for,
shares of capital stock of or ownership interests in the Company or any
Subsidiary are outstanding and (C) no holder of securities of the Company
or any Subsidiary is entitled to have such securities reg-
-21-
istered under a registration statement filed by the Company pursuant to the
Registration Rights Agreement.
(iv) Each of the Issuers has all requisite corporate or
organizational power and authority to execute, deliver and perform each of
its respective obligations under the Indenture, the Notes, the Guarantees,
the Exchange Notes and the Private Exchange Notes; the Indenture meets the
requirements for qualification under the TIA; the Indenture has been duly
and validly authorized by each of the Issuers and, when duly executed and
delivered by each of the Issuers (assuming the due authorization, execution
and delivery thereof by the Trustee), will constitute the valid and legally
binding agreement of each of the Issuers, enforceable against each of the
Issuers in accordance with its terms, except that the enforcement thereof
may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of
equity and the discretion of the court before which any proceeding therefor
may be brought.
(v) The Securities are in the form contemplated by the Indenture.
The Notes and the Guarantees have been duly and validly authorized by the
Company and the Guarantors, as applicable, and, when the Notes and the
Guarantees are duly executed and delivered by the Company and each of the
Guarantors, as applicable, the Securities are authenticated and delivered
by the Trustee in accordance with the provisions of the Indenture (and
assuming the due authorization, execution and delivery of the Securities by
the Trustee in accordance with the Indenture) and the Securities are
delivered to and paid for by the Initial Purchasers in accordance with the
terms of this Agreement, the Securities will constitute the valid and
legally binding obligations of the Company and each of the Guarantors, as
applicable, entitled to the benefits of the Indenture, and enforceable
against the Company and each of the Guarantors, as applicable, in
accordance with their terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or here-
-22-
after in effect relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before which any
proceeding therefor may be brought.
(vi) The Exchange Notes and the Private Exchange Notes and the
guarantees thereof by the Guarantors have been duly and validly authorized
by the Company and each of the Guarantors, as applicable, and, when the
Exchange Notes and the Private Exchange Notes and the guarantees thereof by
the Guarantors have been duly executed and delivered by the Company and
each of the Guarantors, as applicable, in accordance with the terms of the
Registration Rights Agreement and the Indenture (assuming the due
authorization, execution and delivery of the Indenture by the Trustee and
due authentication and delivery of the Exchange Notes and the Private
Exchange Notes by the Trustee in accordance with the Indenture), will
constitute the valid and legally binding obligations of the Company and
each of the Guarantors, as applicable, entitled to the benefits of the
Indenture, and enforceable against the Company and each of the Guarantors,
as applicable, in accordance with their terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general principles
of equity and the discretion of the court before which any proceeding
therefor may be brought.
(vii) Each of the Issuers has all requisite corporate power and
authority to execute, deliver and perform its respective obligations under
the Registration Rights Agreement; the Registration Rights Agreement has
been duly and validly authorized by each of the Issuers and, when duly
executed and delivered by each of the Issuers (assuming due authorization,
execution and delivery thereof by the Initial Purchasers), will constitute
the valid and legally binding agreement of each of the Issuers, enforceable
against each of the Issuers in accordance with its terms, except that (A)
the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
-23-
now or hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before which
any proceeding therefor may be brought and (B) any rights to indemnity or
contribution thereunder may be limited by federal and state securities laws
and public policy considerations.
(viii) Each of the Issuers has all requisite corporate power and
authority to execute, deliver and perform its respective obligations under
this Agreement and to consummate the transactions contemplated hereby; this
Agreement and the consummation by each of the Issuers of the transactions
contemplated hereby have been duly and validly authorized by each of the
Issuers. This Agreement has been duly executed and delivered by each of
the Issuers.
(ix) The Indenture, the Securities and the Registration Rights
Agreement conform in all material respects to the descriptions thereof
contained in the Final Memorandum.
(x) No legal or governmental proceedings are pending or, to the
knowledge of such counsel, threatened to which any of the Company or the
Subsidiaries is a party or to which the property or assets of the Company
or any Subsidiary is subject which, if determined adversely to the Company
or the Subsidiaries, would reasonably be expected to result, individually
or in the aggregate, in a Material Adverse Effect, or which seeks to
restrain, enjoin, prevent the consummation of or otherwise challenge the
issuance or sale of the Securities to be sold hereunder or the consummation
of the Transactions.
(xi) The execution, delivery and performance of this Agreement, the
Indenture and the Registration Rights Agreement and the consummation of the
Transactions and the transactions contemplated hereby and thereby
(including, without limitation, the issuance and sale of the Securities to
the Initial Purchasers) will not conflict with or constitute or result in a
breach or a default under (or an event which with notice or passage of time
or both would constitute a default under) or violation of any of (i) the
terms or provisions of any Contract known to such counsel
-24-
(including in any event any of the foregoing which have been filed by the
Company with the Commission), except for any such conflict, breach,
violation, default or event which would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, (ii)
the certificate of incorporation or bylaws (or similar organizational
document) of the Company or any of the Subsidiaries, or (iii) (assuming
compliance with the Act with respect to the transactions contemplated by
the Registration Rights Agreement and all applicable state securities or
"Blue Sky" laws and assuming the accuracy of the representations and
warranties of the Initial Purchasers in Section 8 hereof) any statute,
judgment, decree, order, rule or regulation known to such counsel to be
applicable to the Company or any of the Subsidiaries or any of their
respective properties or assets, except for any such conflict, breach or
violation which would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(xii) Assuming the accuracy of the representations and warranties
of the Initial Purchasers in Section 8 hereof, no consent, approval,
authorization or order of any governmental authority is required for the
issuance and sale by the Company of the Securities to the Initial
Purchasers, except such as may be required under Blue Sky laws, as to which
such counsel need express no opinion, those which have previously been
obtained and such as may be required in connection with the other
Transactions.
(xiii) The Company and the Subsidiaries have obtained all Permits
necessary to conduct the businesses now or proposed to be conducted by them
as described in the Final Memorandum, the lack of which would, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect; each of the Company and the Subsidiaries has fulfilled and
performed all of its obligations with respect to such Permits, except where
the failure to so fulfill or perform such obligations would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; and no event has occurred which allows, or after notice or
lapse of time would allow, revocation or termination thereof or results in
any other
-25-
material impairment of the rights of the holder of any such Permit, except
where such revocation, termination or impairment would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
(xiv) To such counsel's knowledge, the Company and the
Subsidiaries own or possess adequate licenses or other rights to use all
patents, trademarks, service marks, trade names, copyrights and know-how
("Intellectual Property") necessary to conduct the businesses now or
-----------------------
proposed to be operated by them as described in the Final Memorandum,
except where the failure to own or possess such Intellectual Property would
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and none of the Company or the Subsidiaries has
received any notice of infringement of or conflict with asserted rights of
others with respect to any Intellectual Property which, if such assertion
of infringement or conflict were sustained, would reasonably be expected to
have a Material Adverse Effect.
(xv) To the knowledge of such counsel, there are no legal or
governmental proceedings involving or affecting the Company or the
Subsidiaries or any of their respective properties or assets which would be
required to be described in a prospectus pursuant to the Act that are not
described in the Final Memorandum, nor are there any material contracts or
other documents which would be required to be described in a prospectus
pursuant to the Act that are not described in the Final Memorandum.
(xvi) None of the Company or the Subsidiaries is, or immediately
after the sale of the Securities to be sold hereunder and the application
of the proceeds from such sale (as described in the Final Memorandum under
the caption "Use of Proceeds") will be, an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
(xvii) No registration under the Act of the Securities is required
in connection with the sale of the Securities to the Initial Purchasers as
contemplated by this Agreement and the Final Memorandum or in connection
with the
-26-
initial resale of the Securities by the Initial Purchasers in accordance
with Section 8 of this Agreement, and prior to the commencement of the
Exchange Offer (as defined in the Registration Rights Agreement) or the
effectiveness of the Shelf Registration Statement (as defined in the
Registration Rights Agreement), the Indenture is not required to be
qualified under the TIA, in each case assuming (i) (A) that the purchasers
who buy such Notes in the initial resale thereof are qualified
institutional buyers as defined in Rule 144A promulgated under the Act
("QIBs") or (B) that the offer or sale of the Notes is made in an offshore
------
transaction as defined in Regulation S, (ii) the accuracy of the Initial
Purchasers' representations in Section 8 and the representations,
warranties and covenants of the Company contained in this Agreement
regarding the sale of such Securities to the Initial Purchasers and the
initial resale thereof and (iii) the due performance by the Initial
Purchasers of the agreements set forth in Section 8 hereof.
(xviii) Neither the consummation of the transactions contemplated
by this Agreement nor the sale, issuance, execution or delivery of the
Securities will violate Regulation T, U or X of the Board of Governors of
the Federal Reserve System.
In rendering such opinion, counsel for the Issuers shall have received
and may rely upon such certificates and other documents and information as it
may reasonably request to pass upon such matters.
At the time the foregoing opinion is delivered, ▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇▇▇▇, LLP shall additionally state that it has participated in conferences
with officers and other representatives of the Issuers, representatives of the
independent public accountants for the Issuers, representatives of the Initial
Purchasers and counsel for the Initial Purchasers, at which conferences the
contents of the Final Memorandum and related matters were discussed, and,
although it has not independently verified and is not passing upon and assumes
no responsibility for the accuracy, completeness or fairness of the statements
contained in the Final Memorandum (except to the extent specified in subsection
7(a)(ix)), no facts have come to
-27-
its attention which lead it to believe that the Final Memorandum, on the date
thereof or at the Closing Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements contained therein, in light of the circumstances under
which they were made, not misleading (it being understood that such firm need
express no opinion with respect to the financial statements and related notes
thereto and the other financial, statistical and accounting data included in the
Final Memorandum). The opinion of ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, described in this
Section shall be rendered to the Initial Purchasers at the request of the
Issuers and shall so state therein.
References to the Final Memorandum in this subsection (a) shall
include any amendment or supplement thereto prepared in accordance with the
provisions of this Agreement at the Closing Date.
(b) On the Closing Date, the Initial Purchasers shall have received
the opinion, in form and substance satisfactory to the Initial Purchasers, dated
as of the Closing Date and addressed to the Initial Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, counsel for the Initial Purchasers, with respect to certain legal
matters relating to this Agreement and such other related matters as the Initial
Purchasers may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ shall have received and may rely upon such certificates and other
documents and information as it may reasonably request to pass upon such
matters.
(c) The Initial Purchasers shall have received from each of the
Independent Accountants a comfort letter or letters dated the date hereof and a
comfort letter dated the Closing Date from PricewaterhouseCoopers, LLP, each in
form and substance satisfactory to counsel for the Initial Purchasers.
(d) The representations and warranties of the Issuers contained in
this Agreement shall be true and correct on and as of the date hereof and on and
as of the Closing Date as if made on and as of the Closing Date; the statements
of the Issuers' officers made pursuant to any certificate delivered in
accordance with the provisions hereof shall be true and correct
-28-
on and as of the date made and on and as of the Closing Date; the Issuers shall
have performed all covenants and agreements and satisfied all conditions on
their part to be performed or satisfied hereunder at or prior to the Closing
Date; and, except as described in the Final Memorandum (exclusive of any
amendment or supplement thereto after the date hereof), subsequent to the date
of the most recent financial statements in such Final Memorandum, there shall
have been no event or development, and no information shall have become known,
that, individually or in the aggregate, has or would reasonably be expected to
have a Material Adverse Effect.
(e) The sale of the Securities hereunder shall not be enjoined
(temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial statements in
the Final Memorandum (exclusive of any amendment or supplement thereto after the
date hereof), none of the Company or any of the Subsidiaries shall have
sustained any loss or interference with respect to its business or properties
from fire, flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any strike, labor dispute, slow down or work stoppage or
from any legal or governmental proceeding, order or decree, which loss or
interference, individually or in the aggregate, has or would reasonably be
expected to have a Material Adverse Effect.
(g) The Transactions (other than the Tender Offer) shall have been
consummated concurrently with the Offering.
(h) The Credit Agreement shall have been executed and delivered by
all parties thereto.
(i) The Initial Purchasers shall have received a certificate of the
Company, dated the Closing Date, signed on behalf of the Company by its Chairman
of the Board, President or any Senior Vice President and the Chief Financial
Officer, to the effect that:
(i) The representations and warranties of the Issuers contained in
this Agreement are true and correct on and as of the date hereof and
on and as of the Closing Date, and the Company has performed all
-29-
covenants and agreements and satisfied all conditions on its part to
be performed or satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date
of the most recent financial statements in the Final Memorandum
(exclusive of any amendment or supplement thereto after the date
hereof), no event or development has occurred, and no information has
become known, that, individually or in the aggregate, has or would
reasonably be expected to have a Material Adverse Effect; and
(iii) The sale of the Securities hereunder has not been enjoined
(temporarily or permanently).
(j) On the Closing Date, the Initial Purchasers shall have received
the Registration Rights Agreement executed by each of the Issuers and such
agreement shall be in full force and effect at the Closing Date.
On or before the Closing Date, the Initial Purchasers and counsel for
the Initial Purchasers shall have received such further documents, opinions,
certificates, letters and schedules or instruments relating to the business,
corporate, legal and financial affairs of the Company and the Subsidiaries as
they shall have heretofore reasonably requested from the Company.
All such documents, opinions, certificates, letters, schedules or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are reasonably satisfactory in all material respects to the
Initial Purchasers and counsel for the Initial Purchasers. The Issuers shall
furnish to the Initial Purchasers such conformed copies of such documents,
opinions, certificates, letters, schedules and instruments in such quantities as
the Initial Purchasers shall reasonably request.
8. Offering of Securities; Restrictions on Transfer. (a) Each of
------------------------------------------------
the Initial Purchasers represents and warrants (as to itself only) that it is a
QIB. Each of the Initial Purchasers agrees with the Issuers (as to itself only)
that (i) it has
-30-
not solicited and will not solicit offers for, or offer or sell,
the Securities by any form of general solicitation or general advertising (as
those terms are used in Regulation D under the Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Act; and (ii) it has
solicited and will solicit offers for the Securities only from, and will offer
the Securities only to (A) in the case of offers inside the United States,
persons whom the Initial Purchasers reasonably believe to be QIBs or, if any
such person is buying for one or more institutional accounts for which such
person is acting as fiduciary or agent, only when such person has represented to
the Initial Purchasers that each such account is a QIB, to whom notice has been
given that such sale or delivery is being made in reliance on Rule 144A, and, in
each case, in transactions under Rule 144A and (B) in the case of offers outside
the United States, to persons other than U.S. persons ("foreign purchasers,"
------------------
which term shall include dealers or other professional fiduciaries in the United
States acting on a discretionary basis for foreign beneficial owners (other than
an estate or trust)); provided, however, that, in the case of this clause (B),
-------- -------
in purchasing such Securities such persons are deemed to have represented and
agreed as provided under the caption "Transfer Restrictions" contained in the
Final Memorandum (or, if the Final Memorandum is not in existence, in the most
recent Memorandum).
(b) Each of the Initial Purchasers represents and warrants (as to
itself only) with respect to offers and sales outside the United States that (i)
it has and will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Securities or has
in its possession or distributes any Memorandum or any such other material, in
all cases at its own expense; (ii) the Securities have not been and will not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except in accordance with Regulation S under the Act or
pursuant to an exemption from the registration requirements of the Act; (iii) it
has offered the Securities and will offer and sell the Securities (A) as part of
its distribution at any time and (B) otherwise until 40 days after the later of
the commencement of the offering and the Closing Date, only in accordance with
Rule 903 of Regulation S and, accordingly, neither it nor any persons acting on
its behalf have engaged or will
31
engage in any directed selling efforts (within the meaning of Regulation S) with
respect to the Securities, and any such persons have complied and will comply
with the offering restrictions requirement of Regulation S; and (iv) it agrees
that, at or prior to confirmation of sales of the Securities, it will have sent
to each distributor, dealer or person receiving a selling concession, fee or
other remuneration that purchases Securities from it during the restricted
period a confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the
United States Securities Act of 1933 (the "Securities Act") and may
not be offered and sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of the distribution of
the Securities at any time or (ii) otherwise until 40 days after the
later of the commencement of the offering and the closing date of the
offering, except in either case in accordance with Regulation S (or
Rule 144A if available) under the Securities Act. Terms used above
have the meaning given to them in Regulation S."
Terms used in this Section 8 and not defined in this Agreement have
the meanings given to them in Regulation S.
9. Indemnification and Contribution. (a) Each of the Issuers,
--------------------------------
jointly and severally, agrees to indemnify and hold harmless the Initial
Purchasers, and each person, if any, who controls any Initial Purchaser within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against
any losses, claims, damages or liabilities to which any Initial Purchaser or
such controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as any such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in any Memorandum or any amendment or supplement
thereto; or
32
(ii) the omission or alleged omission to state, in any Memorandum
or any amendment or supplement thereto, a material fact required to be
stated therein or necessary to make the statements therein not misleading,
and will reimburse, as incurred, the Initial Purchasers and each such
controlling person for any legal or other expenses incurred by the Initial
Purchasers or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, the Issuers
-------- -------
will not be liable in any such case to the extent that any such loss, claim,
damage, or liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission (i) made in any
Memorandum or any amendment or supplement thereto in reliance upon and in
conformity with written information concerning the Initial Purchasers furnished
to the Company by the Initial Purchasers specifically for use therein or (ii)
(x) if it is established in the related proceeding that the Initial Purchasers
failed to send or deliver a copy of the Final Memorandum as then amended or
supplemented to the person asserting such loss, claim, damage, or liability
prior to the written confirmation of such sale (provided that the Issuers have
complied with their obligations under Section 5(d) hereof, and (y) the untrue
statement or alleged untrue statement or omission or alleged omission was
completely corrected in the Final Memorandum as the amended or supplemented and
the Final Memorandum as then amended or supplemented does not contain any other
untrue statement or alleged untrue statement or omission or alleged omission
that was the subject matter of the related proceeding. This indemnity agreement
will be in addition to any liability that the Issuers may otherwise have to the
indemnified parties. The Issuers shall not be liable under this Section 9 for
any settlement of any claim or action effected without their prior written
consent, which shall not be unreasonably withheld.
(b) The Initial Purchasers, severally and not jointly, agree to
indemnify and hold harmless each of the Issuers, their respective directors,
their respective officers and each person, if any, who controls any Issuer
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
against any losses, claims, damages or liabilities to which any
33
such Issuer, director, officer or controlling person may become subject under
the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in any Memorandum or any amendment or supplement thereto, or (ii) the
omission or the alleged omission to state therein a material fact required to be
stated in any Memorandum or any amendment or supplement thereto, or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information concerning such Initial Purchaser, furnished to the Issuers
by the Initial Purchasers specifically for use therein; and subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses incurred by any Issuer or any such
director, officer or controlling person in connection with investigating or
defending against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability that the Initial Purchasers may
otherwise have to the indemnified parties. The Initial Purchasers shall not be
liable under this Section 9 for any settlement of any claim or action effected
without their consent, which shall not be unreasonably withheld. The Issuers
shall not, without the prior written consent of the Initial Purchasers, effect
any settlement or compromise of any pending or threatened proceeding in respect
of which any Initial Purchaser is or could have been a party, or indemnity could
have been sought hereunder by any Initial Purchaser, unless such settlement (A)
includes an unconditional written release of the Initial Purchasers, in form and
substance reasonably satisfactory to the Initial Purchasers, from all liability
on claims that are the subject matter of such proceeding and (B) does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of any Initial Purchaser.
(c) Promptly after receipt by an indemnified party under this Section
9 of notice of the commencement of any action for which such indemnified party
is entitled to indemnification under this Section 9, such indemnified party
will, if a
34
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party of the commencement thereof in writing;
but the omission to so notify the indemnifying party (i) will not relieve it
from any liability under paragraph (a) or (b) above unless and to the extent
such failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraphs (a) and (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if (i) the use of counsel chosen by the indemnifying
-------- -------
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 9 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immedi-
35
ately preceding sentence (it being understood, however, that in connection with
such action the indemnifying party shall not be liable for the expenses of more
than one separate counsel (in addition to local counsel) in any one action or
separate but substantially similar actions in the same jurisdiction arising out
of the same general allegations or circumstances, designated by the Initial
Purchasers in the case of paragraph (a) of this Section 9 or the Issuers in the
case of paragraph (b) of this Section 9, representing the indemnified parties
under such paragraph (a) or paragraph (b), as the case may be, who are parties
to such action or actions) or (ii) the indemnifying party has authorized in
writing the employment of counsel for the indemnified party at the expense of
the indemnifying party. After such notice from the indemnifying party to such
indemnified party, the indemnifying party will not be liable for the costs and
expenses of any settlement of such action effected by such indemnified party
without the prior written consent of the indemnifying party (which consent shall
not be unreasonably withheld), unless such indemnified party waived in writing
its rights under this Section 9, in which case the indemnified party may effect
such a settlement without such consent.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 9 is unavailable to, or insufficient to
hold harmless, an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof), each indemnifying party, in order
to provide for just and equitable contribution, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (i) the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other from the
offering of the Securities or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, not only such relative benefits
but also the relative fault of the indemnifying party or parties on the one hand
and the indemnified party on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof). The relative
benefits received by the Issuers on the one hand and any Initial Purchaser on
the other shall be deemed to be in
36
the same proportion as the total proceeds from the offering (before deducting
expenses) received by the Issuers bear to the total discounts and commissions
received by such Initial Purchaser. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuers on the one hand,
or such Initial Purchaser on the other, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission or alleged statement or omission, and any other equitable
considerations appropriate in the circumstances. The Issuers and the Initial
Purchasers agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Initial Purchaser
shall be obligated to make contributions hereunder that in the aggregate exceed
the total discounts, commissions and other compensation received by such Initial
Purchaser under this Agreement, less the aggregate amount of any damages that
such Initial Purchaser has otherwise been required to pay by reason of the
untrue or alleged untrue statements or the omissions or alleged omissions to
state a material fact, and no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls an Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Initial Purchasers, and each director of the Issuers, each officer of the
Issuers and each person, if any, who controls the Issuers within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, shall have the same
rights to contribution as the Issuers.
10. Survival Clause. The respective representations, warranties,
---------------
agreements, covenants, indemnities and other statements of the Issuers, their
officers and the Initial Purchasers set forth in this Agreement or made by or on
behalf of them pursuant to this Agreement shall remain in full force and
37
effect, regardless of (i) any investigation made by or on behalf of the Issuers,
any of their officers or directors, the Initial Purchasers or any controlling
person referred to in Section 9 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 6, 9 and 15 hereof shall remain in full force
and effect, regardless of any termination or cancellation of this Agreement.
11. Termination. (a) This Agreement may be terminated in the sole
-----------
discretion of the Initial Purchasers by notice to the Company given prior to the
Closing Date in the event that the Issuers shall have failed, refused or been
unable to perform all obligations and satisfy all conditions on their part to be
performed or satisfied hereunder at or prior thereto or, if at or prior to the
Closing Date:
(i) any of the Company or the Subsidiaries shall have sustained any
loss or interference with respect to its businesses or properties from
fire, flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any strike, labor dispute, slow down or work stoppage
or any legal or governmental proceeding, which loss or interference, in the
sole judgment of the Initial Purchasers, has had or has a Material Adverse
Effect, or there shall have been, in the sole judgment of the Initial
Purchasers, any event or development that, individually or in the
aggregate, has or could reasonably be expected to have a Material Adverse
Effect (including without limitation a change in control of the Company or
the Subsidiaries), except in each case as described in the Final Memorandum
(exclusive of any amendment or supplement thereto);
(ii) trading in securities of any of the Issuers or in securities
generally on the New York Stock Exchange, American Stock Exchange or the
Nasdaq National Market shall have been suspended (other than temporarily
pending an announcement) or minimum or maximum prices shall have been
established on any such exchange or market;
(iii) a banking moratorium shall have been declared by New York or
United States authorities;
38
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, or (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or any other national or international calamity
or emergency, or (C) any material change in the financial markets of the
United States which, in the case of (A), (B) or (C) above and in the sole
judgment of the Initial Purchasers, makes it impracticable or inadvisable
to proceed with the offering or the delivery of the Securities as
contemplated by the Final Memorandum; or
(v) any securities of any of the Issuers shall have been downgraded
or placed on any "watch list" for possible downgrading by any nationally
recognized statistical rating organization.
(b) Termination of this Agreement pursuant to this Section 11 shall
be without liability of any party to any other party except as provided in
Section 10 hereof.
12. Information Supplied by the Initial Purchasers. The statements
----------------------------------------------
set forth in the third paragraph, the second sentence of the fifth paragraph and
the sixth and seventh paragraphs under the heading "Private Placement" in the
Final Memorandum (to the extent such statements relate to the Initial
Purchasers) constitute the only information furnished by the Initial Purchasers
to the Company for the purposes of Sections 2(a) and 9 hereof.
13. Notices. All communications hereunder shall be in writing and,
-------
if sent to the Initial Purchasers, shall be mailed or delivered to (i) BT ▇▇▇▇.
▇▇▇▇▇ Incorporated, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Finance Department; if sent to the Company, shall be mailed or
delivered to the Company at Building One Services Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General Counsel; with
a copy to ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally
39
delivered; five business days after being deposited in the mail, postage
prepaid, if mailed; and one business day after being timely delivered to a
next-day air courier.
14. Successors. This Agreement shall inure to the benefit of and be
----------
binding upon the Initial Purchasers, the Issuers and their respective successors
and legal representatives, and nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any other person any legal or
equitable right, remedy or claim under or in respect of this Agreement, or any
provisions herein contained; this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person except that (i) the indemnities
of the Issuers contained in Section 9 of this Agreement shall also be for the
benefit of any person or persons who control the Initial Purchasers within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act and (ii) the
indemnities of the Initial Purchasers contained in Section 9 of this Agreement
shall also be for the benefit of the directors of the Issuers, their officers
and any person or persons who control the Issuers within the meaning of Section
15 of the Act or Section 20 of the Exchange Act. No purchaser of Securities
from the Initial Purchasers will be deemed a successor because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
--------------
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
16. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
40
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company,
the Guarantors and the Initial Purchasers.
Very truly yours,
BUILDING ONE SERVICES CORPORATION
By:/s/ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------
Name: F ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Executive Vice President and
General Counsel
ADVENT ELECTRIC COMPANY, INC.
AMERICAN AIR COMPANY, INC.
APPEARANCE MANAGEMENT
SERVICES, INC.
▇▇▇▇▇▇▇▇▇, INC.
BRICK, INC.
BUILDING ONE ELECTRICAL, INC.
BUILDING ONE SERVICE
SOLUTIONS, INC.
BUYR, INC.
CENTER SERVICES, INC.
D/FW MECHANICAL SERVICES, INC.
THE G.S. GROUP, INC.
G.S. FINANCIAL, INC.
GULF STATES, INC.
GSI OF CALIFORNIA, INC.
TESTRONICS, INC.
BRAZOSPORT MANAGEMENT, INC.
▇▇▇▇ ELECTRIC, INC.
▇▇▇▇ MECHANICAL COMPANY
▇▇▇▇▇▇ ▇▇▇▇ MECHANICAL
COMPANY, LLC
LEXINGTON/▇▇▇▇ MECHANICAL
COMPANY, LLC
▇▇▇▇ MECHANICAL SERVICES, LLC
THE ▇▇▇▇▇ COMPANIES, INC.
OIL CAPITAL ELECTRIC, INC.
ENGINEERING DESIGN GROUP, INC.
41
REGENCY ELECTRIC COMPANY MEMPHIS OFFICE, INC.
FLOR-SHIN, INC.
GARFIELD/INDECON ELECTRICAL SERVICES, INC.
▇▇▇▇▇▇ ELECTRICAL CONSTRUCTION CORP.
BELTLINE MECHANICAL SERVICES, INC.
GAMEWELL MECHANICAL, INC.
BUILDING ONE MECHANICAL SERVICES, INC.
ELECTRICAL DESIGN & CONSTRUCTION
INC.
▇▇▇▇ ▇▇▇▇▇ ELECTRICAL CONTRACTORS
INC.
▇▇▇▇▇▇▇▇ MECHANICAL, INC.
NATIONAL NETWORK SERVICES, INC.
OMNI MECHANICAL COMPANY
PERIMETER MAINTENANCE CORPORATION
POTTER ELECTRIC COMPANY, INC.
REGENCY ELECTRIC COMPANY, INC.
REGENCY ELECTRIC COMPANY
JACKSONVILLE OFFICE, INC.
REGENCY ELECTRIC COMPANY
ORLANDO OFFICE, INC.
REGENCY ELECTRIC COMPANY
ATLANTA OFFICE, INC.
REGENCY ELECTRIC COMPANY
PROJECTS GROUP, INC.
REGENCY ELECTRIC COMPANY
SOUTH FLORIDA, INC.
REGENCY ELECTRIC COMPANY
CHARLOTTE OFFICE, INC.
RELIABLE PAPER SERVICE
COMPANY, INC.
RIVIERA ELECTRIC CONSTRUCTION,
CO.
RIVIERA ELECTRIC OF CALIFORNIA
INC.
▇▇▇▇▇▇▇▇ MECHANICAL COMPANY
▇▇▇▇▇▇▇ BROTHERS, INC.
SKC ELECTRIC, INC.
▇▇▇▇▇▇ ELECTRIC, INC.
SKCE, INC.
PROWIRE SECURITY SYSTEMS
▇▇▇▇▇ BUILDING MAINTENANCE, CO.
▇▇▇▇▇ MANAGEMENT GROUP, INC.
▇▇▇▇▇▇ ELECTRIC, INC.
TESS HOLDINGS, INC.
CREST INTERNATIONAL, LLC
TOWN & COUNTRY ELECTRIC, INC.
TRI-CITY ELECTRIC CONTRACTORS,
INC.
TRI-M CORPORATION
42
TRI-M ELECTRICAL CONSTRUCTION
CORP.
TRI-M BUILDING AUTOMATION SYSTEMS
CORP.
TRI-M INFORMATION SYSTEMS
CORP.
TRI-M INTEGRATED SYSTEM
SOLUTIONS CORP.
▇▇▇▇▇▇ ENGINEERING, INC.
▇▇▇▇▇▇ ELECTRICAL CONSTRUCTION
CO.
▇▇▇▇▇▇ ELECTRIC COMPANY, INC.
▇▇▇▇▇▇▇▇ ELECTRONIC COMMUNICATIONS
INC.
BY: /s/ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------
NAME: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇
TITLE: Executive Vice President
and General Counsel
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
BT ALEX. BROWN INCORPORATED
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
FLEET SECURITIES, INC.
c/o BT ▇▇▇▇. ▇▇▇▇▇ Incorporated
43
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
44
SCHEDULE 1
----------
Principal
Amount of
Initial Purchasers Notes
------------------ ---------
BT ▇▇▇▇. ▇▇▇▇▇ Incorporated...................... $ 82,000,000
Bear, ▇▇▇▇▇▇▇ & Co., Inc......................... $ 30,000,000
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.............................. $ 30,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc......................... $ 30,000,000
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co.................. $ 10,000,000
▇▇▇▇▇▇▇▇▇ & Company, Inc......................... $ 10,000,000
Fleet Securities, Inc............................ $ 8,000,000
Total.................................. $200,000,000
============
45
SCHEDULE 2
----------
Subsidiaries of the Company
---------------------------
Jurisdiction of
Name Incorporation
---- ---------------
Advent Electric Company, Inc.......................... Tennessee
American Air Company, Inc............................. California
Appearance Management Services, Inc................... ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, Inc........................................ North Carolina
Brick, Inc............................................ Georgia
Building One Electrical Services, Inc.................. Kansas
Building One Service Solutions, Inc................... ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Inc............................................. Delaware
Center Services, Inc.................................. California
DFW Mechanical Services, Inc.......................... Texas
The G.S. Group, Inc................................... Nevada
Flor-Shin, Inc........................................ South Carolina
G.S. Financial, Inc................................... Nevada
Gulf States, Inc...................................... Texas
GSI of California, Inc................................ California
Testronics, Inc....................................... Texas
Brazosport Management, Inc............................ Texas
▇▇▇▇ Electric, Inc.................................... Utah
▇▇▇▇ Mechanical Company............................... North Carolina
Barnes Ivey Mechanical Company, LLC................... North Carolina
Lexington/▇▇▇▇ Mechanical Company, LLC................ Kentucky
▇▇▇▇ Mechanical Services, LLC......................... Texas
The ▇▇▇▇▇ Companies, Inc.............................. Oklahoma
Oil Capital Electric, Inc............................. Oklahoma
Engineering Design Group, Inc......................... Oklahoma
Electrical Design & Construction, Inc................. Oklahoma
▇▇▇▇ ▇▇▇▇▇ Electrical Contractors, Inc................ Oklahoma
Omni Mechanical Services.............................. Oklahoma
▇▇▇▇▇▇▇▇ Mechanical, Inc.............................. South Carolina
National Network Services, Inc........................ Colorado
Perimeter Maintenance Corporation..................... Nevada
Potter Electric Inc................................... Nevada
Regency Electric Company, Inc......................... Florida
Regency Electric Company Jacksonville Office, Inc..... Florida
Regency Electric Company Orlando Office, Inc.......... Florida
Regency Electric Company Atlanta Office, Inc.......... Georgia
Regency Electric Company Memphis Office, Inc.......... Tennessee
Regency Electric Company Projects Group, Inc......... Florida
Regency Electric Company South Florida, Inc........... Florida
Regency Electric Company Charlotte Office, Inc........ North Carolina
Reliable Paper Service Company, Inc................... Georgia
46
Riviera Electric Construction, Co.............................. Colorado
Riviera Electric of California, Inc............................ California
▇▇▇▇▇▇▇▇ Mechanical Company.................................... Colorado
▇▇▇▇▇▇▇ Brothers, Inc.......................................... South Carolina
SKC Electric, Inc.............................................. Kansas
▇▇▇▇▇▇ Electric, Inc........................................... Kansas
SKCE, Inc...................................................... Kansas
Prowire Security Systems....................................... Kansas
▇▇▇▇▇ Building Maintenance, Co................................. Missouri
▇▇▇▇▇ Management Group, Inc.................................... Missouri
▇▇▇▇▇▇ Electric, Inc........................................... Utah
Tess Holdings, Inc............................................. Wisconsin
Crest International, LLC....................................... Wisconsin
Town & Country Electric, Inc................................... Wisconsin
Tri-City Electric Contractors, Inc............................. Florida
Tri-M Corporation.............................................. Pennsylvania
Tri-M Electrical Construction Corp............................. Pennsylvania
Tri-M Building Automation Systems Corp......................... Pennsylvania
Tri-M Information Systems Corp................................. Pennsylvania
Tri-M Integrated System Solutions Corp......................... Pennsylvania
▇▇▇▇▇▇ Engineering, Inc........................................ Texas
▇▇▇▇▇▇ Electrical Construction Co.............................. North Carolina
Wilson Electric Company, Inc................................... Arizona
▇▇▇▇▇▇▇▇ Electronic Communications, LLC........................ Arizona
▇▇▇▇▇▇ Electrical Construction Corp............................ Pennsylvania
Beltline Mechanical Services, Inc.............................. North Carolina
Gamewell Mechanical, Inc....................................... North Carolina
Building One Mechanical Services, Inc.......................... Mississippi
Flor-Shin, Inc................................................. South Carolina
Garfield/Indecon Electrical Services, Inc...................... Ohio
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SCHEDULE 3
----------
Local Counsel of the Company
▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇▇ & ▇▇▇▇▇▇▇▇
Nexsen, ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
Ray, ▇▇▇▇▇▇▇ & Nebeker
Woolf, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLC
▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, PA
▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, Elder, ▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ LLP
Vimont & ▇▇▇▇▇▇
48