Exhibit 1.1
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation
$300,000,000
11% Senior Notes Due July 1, 2010
PURCHASE AGREEMENT
------------------
June 28, 2000
Credit Suisse First Boston Corporation
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp.
U.S. Bancorp Libra, a Division of
U.S. Bancorp Investments, Inc.
As Representatives of the Several Purchasers,
c/o Credit Suisse First Boston Corporation,
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
1. Introductory. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation, a Delaware
corporation (the "Company"), proposes, subject to the terms and conditions
stated herein, to issue and sell to Credit Suisse First Boston Corporation
("CSFBC"), BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp., U.S. Bancorp Libra, a division of U.S.
Bancorp Investments, Inc., and the purchasers named in Schedule A hereto
("Purchasers"), U.S. $300,000,000 principal amount of its 11% Senior Notes Due
July 1, 2010 (the "Notes"). The Notes will be unconditionally guaranteed (each,
a "Guaranty") on a senior unsecured basis by each of the Company's subsidiaries
listed on Schedule B hereto (the "Guarantors"). The Notes will also be
guaranteed by each existing and subsequently organized domestic subsidiary of
the Company that becomes a guarantor pursuant to the Indenture (as hereinafter
defined). The Notes will be issued under an indenture dated as of July 1, 2000
(the "Indenture"), among the Company, the Guarantors and United States Trust
Company of New York, as trustee (the "Trustee"). The Notes and the Guaranties
are together referred to as the "Offered Securities". The United States
Securities Act of 1933 is herein referred to as the "Securities Act".
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The following transactions (collectively, the "Transactions") Will
occur concurrently with the consummation of the offering of the Offered
Securities (the "Offering"): (i) in accordance with the Stock Purchase Agreement
dated as of April 14, 2000, by and between Raytheon Company, Raytheon Engineers
& Constructors International, Inc. ("RECI") and the Company (the "Stock Purchase
Agreement"), the Company will purchase the capital stock of the subsidiaries of
RECI and specified other assets of RECI and will assume specified liabilities of
RECI, (ii) the Company will obtain $1.0 billion senior secured credit facilities
(the "Senior Credit Facilities"), consisting of $500.0 million in term loans
($400.0 million of which will be drawn on the Closing Date (as hereinafter
defined)) and $500.0 million in revolving credit facilities (none of which will
be drawn on the Closing Date), under a credit agreement and related
documentation among the Company, the lenders party thereto and Credit Suisse
First Boston, New York branch, as administrative agent (the "Credit Agreement"),
and (iii) the Company will use a portion of its borrowings under the Senior
Credit Facilities to refinance the Company's existing credit facilities.
This Agreement, the Registration Rights Agreement (as hereinafter
defined), the Indenture and the Guaranties are referred to herein as the
"Operative Documents". The Stock Purchase Agreement, the Credit Agreement and
the other documents related to the Transactions are referred to herein
collectively as the "Transaction Documents".
Holders (including subsequent transferees) of the Offered Securities
will be entitled to the benefit of a Registration Rights Agreement of even date
herewith (the "Registration Rights Agreement"), among the Company, the
Guarantors and the Purchasers, pursuant to which the Company and the Guarantors
will be obligated to file with the Securities and Exchange Commission (the
"Commission") (i) a registration statement (the "Exchange Offer Registration
Statement") under the Securities Act registering an issue of senior notes of the
Company guaranteed by the Guarantors (the "Exchange Securities"), which shall be
identical in all material respects to the Offered Securities (except that the
Exchange Securities will not contain terms with respect to registration rights
or transfer restrictions) to be offered in exchange for the Offered Securities
(the "Registered Exchange Offer") and (ii) under certain circumstances specified
in the Registration Rights Agreement, a shelf registration statement (the "Shelf
Registration Statement") pursuant to Rule 415 under the Securities Act.
The Company and the Guarantors jointly and severally agree with the
several Purchasers as follows:
2. Representations and Warranties of the Company and the Guarantors.
As used in this Section 2 only, references to the "Company" or "its
subsidiaries" shall mean the Company or its subsidiaries, prior to the
consummation of the Transactions,
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and shall mean the Company or its subsidiaries including the purchased assets
and the assumed liabilities of RECI, effective upon the consummation of the
Transactions. The Company and the Guarantors jointly and severally represent and
warrant to, and agree with, the several Purchasers that:
(a) A preliminary confidential offering circular and a final offering
circular relating to the Offered Securities to be offered by the Purchasers
have been prepared by the Company. Such preliminary offering circular,
dated June 15, 2000 (the "Preliminary Offering Circular"), and final
offering circular, dated June 28, 2000 (the "Offering Circular"), as
supplemented as of the date of this Agreement, together with any exhibit
thereto, any documents incorporated therein by reference or any other
document approved by the Company for use in connection with the
contemplated resale of the Offered Securities, are hereinafter collectively
referred to as the "Offering Document". On the date of this Agreement, the
Offering Document does not include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply to statements
in or omissions from the Offering Document based upon written information
furnished to the Company by any Purchaser through CSFBC specifically for
use therein, it being understood and agreed that the only such information
is that described as such in Section 7(b) hereof. Except as disclosed in
the Offering Document, on the date of this Agreement, the Company's Annual
Report on Form 10-K most recently filed with the Securities and Exchange
Commission (the "Commission") and all subsequent reports (collectively, the
"Exchange Act Reports") which have been filed by the Company with the
Commission or sent to shareholders pursuant to the Securities Exchange Act
of 1934 (the "Exchange Act") do not include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. Such documents, when they were filed with the
Commission, conformed in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Offering Document; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not have a
material adverse effect on the business, assets, operations, properties,
financial condition, liabilities or prospects of the Company
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and its subsidiaries taken as a whole, or would not materially and
adversely affect the ability of the Company or any of the Guarantors to
perform its obligations under the Operative Documents and the Transaction
Documents (a "Material Adverse Effect").
(c) Each subsidiary that would be a "Significant Subsidiary" of the
Company within the meaning of Rule 1-02 under Regulation S-X promulgated by
the Commission (each, a "Significant Subsidiary") has been duly
incorporated and is an existing corporation in good standing under the laws
of the jurisdiction of its incorporation or organization, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Offering Document; and each Significant
Subsidiary is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification, except
to the extent that the failure to be so qualified or be in good standing
would not have a Material Adverse Effect; all of the issued and outstanding
capital stock of each Significant Subsidiary has been duly authorized and
validly issued and is fully paid and nonassessable; and the capital stock
of each subsidiary owned by the Company, directly or through subsidiaries,
is owned free from liens, encumbrances and defects except as otherwise
described in the Offering Document.
(d) All of the issued and outstanding capital stock of the Company
and each Significant Subsidiary that is a corporation has been duly
authorized and validly issued and is fully paid and nonassessable; and the
capital stock of the Company and each of its subsidiaries that are
corporations, owned directly or indirectly, is owned free from liens,
encumbrances and defects, except liens and encumbrances arising under or
not prohibited by the Credit Agreement.
(e) The Notes have been duly authorized by the Company; each Guaranty
will have been duly authorized by each respective Guarantor as of the
Closing Date; the Indenture has been duly authorized by the Company and, as
of the Closing Date, each of the Guarantors; and when the Offered
Securities are delivered and paid for and authenticated by the Trustee in
accordance with the terms of this Agreement and the Indenture on the
Closing Date, (i) such Notes will have been duly executed, authenticated,
issued and delivered by the Company, such Guaranties will have been duly
executed and delivered by each respective Guarantor, and the Offered
Securities will constitute valid and legally binding obligations of the
Company and each Guarantor, enforceable against the Company and each
Guarantor in accordance with their terms, subject, as to enforcement of
remedies, to bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, general equitable principles
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and the discretion of courts in granting equitable remedies, and will
conform in all material respects to the description thereof contained in
the Offering Document and (ii) the Indenture will have been duly executed
and delivered by the Company and each of the Guarantors, will constitute a
valid and legally binding obligation of the Company and each of the
Guarantors, enforceable in accordance with its terms, subject, as to
enforcement of remedies, to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally, general
equitable principles and the discretion of courts in granting equitable
remedies, and will conform in all material respects to the description
thereof contained in the Offering Document.
(f) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company and any person
that would give rise to a valid claim against the Company or any Purchaser
for a brokerage commission, finder's fee or other like payment relating to
the Offering.
(g) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court not heretofore obtained is
required for the consummation of (i) the Transactions or (ii) the
transactions contemplated by each of the Operative Documents in connection
with the issuance and sale of the Offered Securities by the Company, except
as may be required under the Securities Act, the Trust Indenture Act of
1939, as amended (the "TIA"), and the rules and regulations of the
Commission thereunder with respect to the Exchange Offer Registration
Statement or the Shelf Registration Statement and the transactions
contemplated by the Registration Rights Agreement, or any state or foreign
securities laws or by the regulations of the National Association of
Securities Dealers, Inc. ("NASD").
(h) The execution, delivery and performance of each of the Operative
Documents, and the issuance and sale of the Offered Securities to the
Purchasers in the manner contemplated herein, and compliance with the terms
and provisions thereof, will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any statute,
any rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or any agreement or
instrument to which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or the charter
or by-laws of the Company or any such subsidiary. The Company has full
power and authority to authorize, issue and sell the Notes, and each
Guarantor has full power and authority to authorize and deliver the
Guaranties, as contemplated by this Agreement.
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(i) Each of the Transaction Documents (i) has been duly authorized by
the Company (to the extent a party thereto), (ii) as of the Closing Date
will have been executed and delivered by the Company and each Guarantor (to
the extent a party thereto) and (iii) conforms in all material respects to
the description thereof contained in the Offering Document. Each of the
Transaction Documents will, when so executed, constitute a valid and
legally binding obligation of the Company and each Guarantor (as the case
may be) and will be enforceable in accordance with its terms, subject, as
to enforcement of remedies, to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally, general
equitable principles and the discretion of courts in granting equitable
remedies, and except that any rights to indemnity and contribution may be
limited by federal and state securities laws and public policy
considerations.
(j) The execution, delivery and performance of the Transaction
Documents and the Operative Documents by the Company and each Guarantor (to
the extent a party thereto) and compliance with the terms and provisions of
any such Transaction Document or Operative Document will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of
their properties, or any agreement or instrument to which the Company or
any such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company or any
such subsidiary is subject, or the charter or by-laws of the Company or any
such subsidiary.
(k) Each of this Agreement and the Registration Rights Agreement (i)
has been duly authorized by the Company) and each Guarantor (to the extent
it is a party thereto), (ii) as of the Closing Date, will have been
executed and delivered by the Company and each Guarantor (to the extent it
is a party thereto) and (iii) conforms in all material respects to the
description thereof contained in the Offering Document. Each of this
Agreement and the Registration Rights Agreement will, when so executed,
constitute a valid and legally binding obligation of the Company and each
Guarantor (as the case may be) and will be enforceable in accordance with
its terms, subject, as to enforcement of remedies, to bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally, general equitable principles and the discretion of courts
in granting equitable remedies, and except that any rights to indemnity and
contribution may be limited by federal and state securities laws and public
policy considerations.
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(l) Except as disclosed in the Offering Document, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and
except as disclosed in the Offering Document, the Company and its
subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere with
the use made or to be made thereof by them.
(m) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(n) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(o) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "Intellectual Property Rights")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(p) Except as disclosed in the Offering Document, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "Environmental Laws"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would
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individually or in the aggregate have a Material Adverse Effect; and the
Company is not aware of any pending investigation which might lead to such
a claim.
(q) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Company, any
of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or would
materially and adversely affect the ability of the Company to perform its
obligations under any Operative Document, or which are otherwise material
in the context of the sale of the Offered Securities; and no such actions,
suits or proceedings are threatened or, to the Company's knowledge,
contemplated.
(r) The historical financial statements included in the Offering
Document present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and, such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent basis;
and the assumptions used in preparing the pro forma financial statements
included in the Offering Document provide a reasonable basis for presenting
the significant effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding historical
financial statement amounts.
(s) Except as disclosed in the Offering Document, since the date of
the latest audited financial statements included in the Offering Document
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, and, except as disclosed in
or contemplated by the Offering Document, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock.
(t) None of the Company or any Guarantor is an open-end investment
company, unit investment trust or face-amount certificate company that is
or is required to be registered under Section 8 of the United States
Investment Company Act of 1940 (the "Investment Company Act"); and none of
the Company or any Guarantor is and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in
9
the Offering Document, will be an "investment company" as defined in the
Investment Company Act.
(u) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are listed
on any national securities exchange registered under Section 6 of the
Exchange Act or quoted in a U.S. automated inter-dealer quotation system.
(v) The offer and sale of the Offered Securities in the manner
contemplated by this Agreement and the Offering Document will be exempt
from the registration requirements of the Securities Act by reason of
Section 4(2) thereof and Regulation S thereunder ("Regulation S"); and it
is not necessary to qualify an indenture in respect of the Offered
Securities under the TIA.
(w) None of the Company, the Guarantors, any of their affiliates, or
any person acting on its or their behalf (i) has, within the six-month
period prior to the date hereof, offered or sold in the United States or to
any U.S. person (as such terms are defined in Regulation S under the
Securities Act) the Offered Securities or any security of the same class
or series as the Offered Securities or (ii) has offered or will offer or
sell the Offered Securities (A) in the United States by means of any form
of general solicitation or general advertising within the meaning of Rule
502(c) under the Securities Act or (B) with respect to any such securities
sold in reliance on Rule 903 of Regulation S, by means of any directed
selling efforts within the meaning of Rule 902(c) of Regulation S. The
Company, the Guarantors, their affiliates and any person acting on any of
their behalf (other than the Purchasers) have complied and will comply with
the offering restrictions requirement of Regulation S. None of the Company
or the Guarantors has entered or will enter into any contractual
arrangement with respect to the distribution of the Offered Securities
except for this Agreement.
(x) The Company is subject to Section 13 or 15(d) of the Exchange
Act.
3. Purchase, Sale and Delivery of Offered Securities. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at a purchase price of 96.762% of the principal amount thereof
plus accrued interest (if any) from June 28, 2000 to the Closing Date (as
hereinafter defined) the respective principal amounts of Offered Securities set
forth opposite the names of the several Purchasers in Schedule A hereto.
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The Company will deliver against payment of the purchase price the
Offered Securities in the form of one or more permanent Global Securities in
definitive form (the "Global Securities") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global Securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Offering Document. Payment for the Offered
Securities shall be made by the Purchasers in Federal (same day) funds by wire
transfer to an account at a bank acceptable to CSFBC at the office of Cravath,
Swaine & ▇▇▇▇▇ at 10:00 A.M. (New York time), on July 7, 2000, or at such other
time not later than seven full business days thereafter as CSFBC and the Company
determine, such time being herein referred to as the "Closing Date", against
delivery to the Trustee as custodian for DTC of the Global Securities
representing all of the Offered Securities. The Global Securities will be made
available for review at the above office of Cravath, Swaine & ▇▇▇▇▇ at least 24
hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers. (a) Each
Purchaser severally represents and warrants to the Company that it is an
"accredited investor" within the meaning of Regulation D under the Securities
Act.
(b) Each Purchaser severally acknowledges that the Offered Securities
have not been registered under the Securities Act and may 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 or pursuant to an exemption from the
registration requirements of the Securities Act. Each Purchaser severally
represents and agrees that it has offered and sold the Offered Securities, and
will offer and sell the Offered Securities only in accordance with Rule 903 or
Rule 144A under the Securities Act ("Rule 144A"). Accordingly, neither such
Purchaser nor its affiliates, nor any persons acting on its or their behalf,
have engaged or will engage in any directed selling efforts with respect to the
Offered Securities and each Purchaser, its affiliates and all persons acting on
its or their behalf have complied and will comply with the offering restrictions
requirement of Regulation S. Unless otherwise defined herein, terms used in
this subsection (b) have the meanings given to them by Regulation S.
(c) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual arrangement
with respect to the distribution of the Offered Securities except for any such
arrangements with the other Purchasers or affiliates of the other Purchasers or
with the prior written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Offered Securities in the United States by
means of any form of
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general solicitation or general advertising, within the meaning of Rule 502(c)
under the Securities Act, including, but not limited to (i) any advertisement,
article, notice or other communication published in any newspaper, magazine or
similar media or broadcast over television or radio, or (ii) any seminar or
meeting whose attendees have been invited by any general solicitation or general
advertising. Each Purchaser severally agrees, with respect to resales made in
reliance on Rule 144A of any of the Offered Securities, to deliver either with
the confirmation of such resale or otherwise prior to settlement of such resale
a notice to the effect that the resale of such Offered Securities has been made
in reliance upon the exemption from the registration requirements of the
Securities Act provided by Rule 144A.
(e) Each Purchaser severally represents and agrees that (i) it has
not offered or sold, and prior to the date six months after the date of issue of
the Offered Securities will not offer or sell, any Offered Securities to persons
in the United Kingdom except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances which
have not resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations 1995;
(ii) it has complied and will comply with all applicable provisions of the
Public Offers of Securities Regulations 1995 and the Financial Services ▇▇▇ ▇▇▇▇
with respect to anything done by it in relation to the Offered Securities in,
from or otherwise involving the United Kingdom; and (iii) it has only issued or
passed on, and will only issue or pass on, in the United Kingdom, any document
received by it in connection with the issuance of the Offered Securities to a
person who is of a kind described in Article 11(3) of the Financial Services ▇▇▇
▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1996 or is a person to whom
such document may otherwise lawfully be issued or passed on.
(f) Each Purchaser represents and agrees that (i) it has not
solicited, and will not solicit, offers to purchase any of the Offered
Securities from, (ii) it has not sold, and will not sell, any of the Offered
Securities to, and (iii) it has not distributed, and will not distribute, the
Offered Document to, any person or entity in any jurisdiction outside of the
United States except, in each case, in compliance in all material respects with
all applicable laws. For the purpose of this Agreement, "United States" means
the United States of America, its territories, its possessions and other areas
subject to its jurisdiction.
5. Certain Agreements of the Company. The Company agrees with the
several Purchasers that:
(a) The Company will advise CSFBC promptly of any proposal to amend
or supplement the Offering Document and will not effect such amendment or
supplementation without CSFBC's consent. If, at any time prior to the
completion
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of the resale of the Offered Securities by the Purchasers any event occurs
as a result of which the Offering Document as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, the
Company promptly will notify CSFBC of such event and promptly will prepare,
at its own expense, an amendment or supplement which will correct such
statement or omission. Neither CSFBC's consent to, nor the Purchasers'
delivery to offerees or investors of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 6.
(b) The Company will furnish to CSFBC copies of any preliminary
offering circular, the Offering Document and all amendments and supplements
to such documents, in each case as soon as available and in such quantities
as CSFBC requests, and the Company will furnish to CSFBC, as soon as
available, three copies of the Final Offering Circular signed by a duly
authorized officer of the Company, one of which will include the
independent accountants' reports therein manually signed by such
independent accountants. At any time when the Company is not subject to
Section 13 or 15(d) of the Exchange Act, for so long as any Offered
Securities are outstanding, the Company will promptly furnish or cause to
be furnished to CSFBC (and, upon request, to each of the other Purchasers)
and, upon request of holders and prospective purchasers of the Offered
Securities, to such holders and purchasers, copies of the information
required to be delivered to holders and prospective purchasers of the
Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or
any successor provision thereto) in order to permit compliance with Rule
144A in connection with resales by such holders of the Offered Securities.
The Company will pay the expenses of printing and distributing to the
Purchasers all such documents.
(c) The Company will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions in the United States and
Canada as CSFBC designates and will continue such qualifications in effect
so long as required for the resale of the Offered Securities by the
Purchasers provided that the Company will not be required to qualify as a
foreign corporation or to file a general consent to service of process in
any such state or province.
(d) During the period of five years hereafter, the Company will
furnish to CSFBC and, upon request, to each of the other Purchasers, as
soon as practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will furnish to CSFBC
and, upon request, to each of the other Purchasers (i) as soon as
available, a copy of each report and any
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definitive proxy statement of the Company filed with the Commission under
the Exchange Act or mailed to stockholders, and (ii) from time to time,
such other information concerning the Company as CSFBC may reasonably
request.
(e) During the period of two years after the Closing Date, the
Company will, upon request, furnish to CSFBC, each of the other Purchasers
and any holder of Offered Securities a copy of the restrictions on transfer
applicable to the Securities.
(f) During the period of two years after the Closing Date, the Company
will not, and will not permit any of its affiliates (as defined in Rule
144) to, resell any of the Offered Securities that have been reacquired by
any of them.
(g) During the period of two years after the Closing Date, the Company
will not be or become an open-end investment company, unit investment trust
or face-amount certificate company that is or is required to be registered
under Section 8 of the Investment Company Act or is, or will be or become,
a closed-end investment company required to be registered, but not
registered, under the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance of
its obligations under the Operative Documents including (i) the fees and
expenses of the Trustee and its professional advisers; (ii) all expenses in
connection with the execution, issue, authentication, packaging and initial
delivery of the Offered Securities and, as applicable, the Exchange
Securities, the preparation and printing of this Agreement, the
Registration Rights Agreement, the Offered Securities, the Indenture, the
Offering Document and amendments and supplements thereto, and any other
document relating to the issuance, offer, sale and delivery of the Offered
Securities and as applicable the Exchange Securities; (iii) the cost of
using the Offered Securities and qualifying the Offered Securities for
trading in The PortalSM Market ("PORTAL") and any expenses incidental
thereto; (iv) the cost of any advertising approved by the Company in
connection with the issue of the Offered Securities; (v) expenses
(including fees and disbursements of counsel) incurred in connection with
qualification of the Offered Securities or the Exchange Securities for sale
under the laws of such jurisdictions in the United States and Canada as
CSFBC designates and the printing of memoranda relating thereto; (vi) any
fees charged by investment rating agencies for the rating of the Offered
Securities or the Exchange Securities; and (vii) expenses incurred in
distributing preliminary offering circulars and the Offering Document
(including any amendments and supplements thereto) to the Purchasers. The
Company will reimburse the Purchasers for all travel expenses of the
Purchasers and the Company's officers and employees and any other expenses
14
of the Purchasers and the Company in connection with attending or hosting
meetings with prospective purchasers of the Offered Securities.
(i) In connection with the offering, until CSFBC shall have notified
the Company and the other Purchasers of the completion of the resale of the
Offered Securities, neither the Company nor any of its affiliates has or
will, either alone or with one or more other persons, bid for or purchase
for any account in which it or any of its affiliates has a beneficial
interest any Offered Securities or attempt to induce any person to purchase
any Offered Securities; and neither it nor any of its affiliates will make
bids or purchases for the purpose of creating actual, or apparent, active
trading in, or of raising the price of, the Offered Securities.
(j) The Company will apply the net proceeds of the offering and the
sale of the Offered Securities in the manner set forth in the Offering
Document under the caption "Use of Proceeds".
6. Conditions of the Obligations of the Purchasers. The obligations
of the several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of
this Agreement, of PricewaterhouseCoopers LLP, confirming that they are
independent public accountants within the meaning of the Securities Act and
the applicable published rules and regulations thereunder ("RULES AND
REGULATIONS") and to the effect that:
(i) in their opinion the financial statements examined by them
and included in the Offering Document comply as to form in all
material respects with the accounting requirements of the Securities
Act and the related published Rules and Regulations that would be
applicable if the Offering were registered under the Securities Act;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards
No. 71, Interim Financial Information, on the unaudited financial
statements included in the Offering Document;
15
(iii) on the basis of the review referred to in clause (ii) above,
a reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility for
financial and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements included in the
Offering Document do not comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the related published Rules and Regulations
that would be applicable if the Offering were registered under
the Securities Act or any material modifications should be made
to such unaudited financial statements for them to be in
conformity with generally accepted accounting principles;
(B) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three business days prior to the date of this Agreement,
there was any change in the capital stock or any increase in
short-term debt or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any decrease in
current assets or total assets, as compared with amounts shown on
the latest balance sheet included in the Offering Document; or
(C) for the period from the closing date of the latest
income statement included in the Offering Document to the closing
date of the latest available income statement read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year, in revenue, gross
profit or net income or in the ratio of earnings to fixed
charges;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which are described in such letter;
and
(iv) they have (a) read the unaudited pro forma condensed
combined financial statements included in the Offering Document; (b)
inquired of certain officials of the Company who have responsibility
for financial and accounting matters about (i) the basis for their
determination of the pro forma adjustments and (ii) whether the
unaudited pro forma condensed combined financial statements referred
to in clause (a) above comply as to form in all material respects with
the applicable accounting requirements
16
of Rule 11-02 of Regulation S-X; and (c) proved the arithmetic
accuracy of the application of the pro form adjustments to the
historical amounts in the unaudited pro forma condensed combined
financial statements;
(v) on the basis of the review referred to in clause (iv) above,
nothing came to their attention that caused them to believe that the
unaudited pro forma condensed combined financial statements included
in the Offering Document do not comply as to form in all material
respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X and that the pro form adjustments have not been
properly applied to the historical amounts in the compilation of those
statements; and
(vi) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Offering Document (to the extent that such dollar
amounts, percentages and other financial information are derived from
the general accounting records of the Company and its subsidiaries
subject to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or computation)
with the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter and
have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) a change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange
controls as would, in the judgment of CSFBC, be likely to prejudice
materially the success of the proposed issue, sale or distribution of the
Offered Securities, whether in the primary market or in respect of dealings
in the secondary market, or (ii) (A) any change, or any development or
event involving a prospective change, in the condition (financial or
other), business, properties or results of operations of the Company or its
subsidiaries taken as a whole which, in the judgment of a majority in
interest of the Purchasers, including CSFBC, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
offering or the sale of and payment for the Offered Securities; (B) any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such
17
rating); (C) any suspension or limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum prices
for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (D) any banking moratorium declared by U.S. Federal or New York
authorities; or (E) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or emergency if,
in the judgment of a majority in interest of the Purchasers, including
CSFBC, the effect of any such outbreak, escalation, declaration, calamity
or emergency makes it impractical or inadvisable to proceed with completion
of the offering or sale of and payment for the Offered Securities.
(c) Concurrently with or prior to the issue and sale of the Offered
Securities by the Company, the Transactions shall be consummated on terms
that conform in all material respects to the description thereof in the
Offering Document, and the Purchasers shall have received true and correct
copies of all documents pertaining thereto and evidence reasonably
satisfactory to the Purchasers of the consummation thereof.
(d) Concurrently with or prior to the issuance and sale of the
Offered Securities by the Company, the initial borrowings under the Credit
Agreement shall have occurred. There shall exist at and as of the Closing
Date (after giving effect to the transactions contemplated by this
Agreement and the Transactions) no condition that would constitute a
default (or an event that with notice or lapse of time, or both, would
constitute a default) under the Credit Agreement or any other Transaction
Document.
(e) The Purchasers shall have received an opinion, dated the Closing
Date, of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company and the
Guarantors, that:
(i) assuming that the Indenture is the valid and legally binding
obligation of the Trustee, the Indenture constitutes valid and legally
binding obligation of the Company and each Guarantor enforceable in
accordance with its terms, subject, as to enforcement of remedies, to
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally, general equitable principles
and the discretion of courts in granting equitable remedies;
(ii) assuming due authentication of the Notes by the Trustee and
upon payment and delivery in accordance with this Agreement, the Notes
will constitute valid and legally binding obligations of the Company
18
enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture subject, as to the
enforcement of remedies, to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally,
general equitable principles and the discretion of courts in granting
equitable remedies;
(iii) the issue and sale of the Offered Securities by the Company
and the Guarantors and the compliance by the Company and the
Guarantors with all the provisions of this Agreement will not violate
any Federal or New York statute;
(iv) no registration of the Offered Securities under the
Securities Act, and no qualification of the Indenture under the TIA,
is required for the offer and sale of the Offered Securities by the
Company to the Purchasers or the reoffer and resale of the Offered
Securities by the Purchasers to the initial purchasers therefrom
solely in the manner contemplated by the Offering Document, this
Agreement and the Indenture;
(v) each of this Agreement and the Registration Rights
Agreement constitutes a valid and legally binding obligation of the
Company and each Guarantor enforceable in accordance with its terms,
subject, as to enforcement of remedies, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, general equitable principles and the discretion of courts
in granting equitable remedies;
(vi) each of the Guaranties constitutes a valid and legally
binding obligation of each of the Guarantors, subject, as to
enforcement of remedies, to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally,
general equitable principles and the discretion of the courts in
granting equitable remedies;
(vii) such counsel have no reason to believe that the Offering
Circular or any amendment or supplement thereto made prior to the
Closing Date as of the date of the Offering Circular or any such
amendment or supplement thereto and as of the Closing Date, contained
or contains any untrue statement of a material fact or omitted or
omits to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the
descriptions in the Offering Circular of statutes, legal and
governmental proceedings and contracts and
19
other documents are accurate and fairly present the information, it
being understood that such counsel need express no opinion as to the
financial statements or other financial data contained in the Offering
Circular; and
(viii) none of the Company or the Guarantors is an open-end
investment, unit investment trust or face-amount certificate company
that is or is required to be registered under Section 8 of the
Investment Company Act, or a closed-end investment company required to
be registered, but not registered, thereunder; and none of the Company
or the Guarantors is or, after giving effect to the offering and sale
of the Offered Securities and the application of the proceeds thereof
as described in the Offering Document, will be an "investment company"
as defined in the Investment Company Act.
In rendering such opinion, (A) as to matters involving the
application of laws of any jurisdiction other than the State of New
York, the General Corporation Law of the State of Delaware or the
federal laws of the United States, such counsel may assume the
correctness of the opinions of the general counsel of the Company as
to matters identified therein and (B) as to matters of fact, to the
extent they deem proper, such counsel may rely on certificates of
responsible officers of the Company and public officials. Such opinion
may be limited to the General Corporation Law of the State of Delaware
and the laws of the State of New York, and the federal laws of the
United States. Such opinion may also be given by other counsel
satisfactory to the Purchasers instead of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
as it relates to matters involving the application of laws of any
jurisdiction other than the State of New York, the General Corporation
Law of the State of Delaware or the federal laws of the United States.
(f) The Purchasers shall have received an opinion, dated the Closing
Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇, General Counsel for the Company and the Guarantors,
that:
(i) the Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Offering Document; and the Company is
duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification;
20
(ii) each of the Company's Significant Subsidiaries has been
duly incorporated or formed and is an existing corporation or limited
liability company in good standing under the laws of the jurisdiction
of its incorporation or formation, with corporate or limited liability
company power and authority to own its properties and conduct its
business as described in the Offering Document; and each is duly
qualified to do business as a foreign corporation and is in good
standing in the jurisdictions listed in such opinion;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and each Guarantor;
(iv) the Notes have been duly authorized, executed and issued
by the Company;
(v) no consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of (A) the Transactions or (B) the transactions
contemplated by the Operative Documents in connection with the
issuance or sale of the Notes by the Company and the issuance of the
Guaranties by the Guarantors, except such as may be required under the
Securities Act, the TIA and the rules and regulations of the
Commission thereunder with respect to the Registration Statement or
the Shelf Registration Statement and the transactions contemplated by
the Registration Rights Agreement, or any state or foreign securities
laws or by the regulations of the NASD;
(vi) each of this Agreement and the Registration Rights
Agreement has been duly authorized, executed and delivered by the
Company and each Guarantor;
(vii) each of the Transaction Documents has been duly
authorized, executed and delivered by the Company and each Guarantor
(to the extent a party thereto), and constitutes a valid and legally
binding obligation of the Company and each Guarantor (to the extent a
party thereto) enforceable in accordance with its terms, subject, as
to enforcement of remedies, to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally,
general equitable principles and the discretion of courts in granting
equitable remedies;
(viii) each of the Guaranties has been duly authorized and
executed by the respective Guarantor;
21
(ix) there are no pending actions, suits or proceedings against
or affecting the Company, any of its subsidiaries or any of their
respective properties that, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely affect the
ability of the Company to perform its obligations under any of the
Operative Documents, or which are otherwise material in the context of
the sale of the Offered Securities; and no such actions, suits or
proceedings are threatened or, to such counsel's knowledge,
contemplated;
(x) the execution, delivery and performance of any Operative
Document or Transaction Document or the issuance and sale of the
Offered Securities and compliance with the terms and provisions
thereof, will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body or any
court having jurisdiction over the Company or any subsidiary of the
Company or any of their properties, or any agreement or instrument to
which the Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or the
charter or by-laws of the Company or any such subsidiary, and the
Company has full power and authority to authorize, issue and sell the
Notes, and the Guarantors have full power and authority to authorize
and deliver the Guaranties, as contemplated by this Agreement; and
(xi) such counsel have no reason to believe that the Offering
Circular or any amendment or supplement thereto made prior to the
Closing Date as of the date of the Offering Circular or any such
amendment or supplement thereto and as of the Closing Date, contained
or contains any untrue statement of a material fact or omitted or
omits to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the
descriptions in the Offering Circular of statutes, legal and
governmental proceedings and contracts and other documents are
accurate and fairly present the information, it being understood that
such counsel need express no opinion as to the financial statements or
other financial data contained in the Offering Circular.
(g) The Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇,
counsel for the Purchasers, such opinion or opinions, dated the Closing
Date, with respect to the incorporation of the Company, the validity of the
Offered
22
Securities, the Offering Circular, the exemption from registration for the
offer and sale of the Offered Securities by the Company to the several
Purchasers and the resales by the several Purchasers as contemplated hereby
and other related matters as CSFBC may require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(h) The Purchasers shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of each of the Company and the Guarantors
in which such officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of the
Company or the applicable Guarantor (as the case may be) in this Agreement
are true and correct, that the Company or the applicable Guarantor has
complied with all agreements and satisfied all conditions on their part to
be performed or satisfied hereunder at or prior to the Closing Date, and
that, subsequent to the respective dates of the most recent consolidated
financial statements of the Company or the applicable Guarantor in the
Offering Document there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in
the condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole except as
set forth in or contemplated by the Offering Document or as described in
such certificate.
(i) The Purchasers shall have received a letter, dated the Closing
Date, of PricewaterhouseCoopers LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to
in such subsection will be a date not more than three days prior to the
Closing Date for the purposes of this subsection.
(j) The Company, the Guarantors and the Trustee shall have entered
into the Indenture, and the Purchasers shall have received an executed
counterpart thereof.
(k) Each of the Guarantors, including those Guarantors listed in the
footnote to Schedule B hereto, shall have become a party to the Operative
Documents and shall be subject to all the terms and provisions of each such
document, and all representations and warranties regarding the Guarantors
contained herein shall be true and correct.
The Company will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFBC may in
23
its sole discretion waive on behalf of the Purchasers compliance with any
conditions to the obligations of the Purchasers hereunder.
7. Indemnification and Contribution. (a) The Company and each
Guarantor will indemnify and hold harmless each Purchaser, its partners,
directors and officers and each person, if any, who controls such Purchaser
within the meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such Purchaser may
become subject, under the Securities Act or 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 any or any untrue statement or alleged
untrue statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related preliminary offering circular,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
including any losses, claims, damages or liabilities arising out of or based
upon the Company's failure to perform its obligations under Section 5(a) of this
Agreement, and will reimburse each Purchaser for any legal or other expenses
reasonably incurred by such Purchaser in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company 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 an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Purchaser
through CSFBC specifically for use therein, it being understood and agreed that
the only such information consists of the information described as such in
subsection (b) below; provided further, however, that with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
the Preliminary Offering Circular, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Purchaser that sold the
Offered Securities concerned to the person asserting any such losses, claims,
damages or liabilities, to the extent that such sale was an initial resale by
such Purchaser and any such loss, claim, damage or liability of such Purchaser
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Offered Securities to such
person, a copy of the Offering Document (exclusive of any material included
therein but not attached thereto) if the Company had previously furnished copies
thereof to such Purchaser.
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless the Company, the Guarantors, their respective directors and officers
and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act, against any losses, claims, damages or liabilities to
which the Company or a Guarantor (as the case may be) may become subject, under
the Securities Act or the
24
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Offering Document, or any amendment or supplement thereto, or any related
preliminary offering circular, or arise out of or are based upon the omission or
the alleged omission to state therein a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company or a Guarantor (as the case may be) by such Purchaser
through CSFBC specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company or the Guarantor (as the case
may be) in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Purchaser consists of
the following information in the Offering Document furnished on behalf of each
Purchaser: Under the caption "Plan of Distribution": (i) the second and third
sentences of paragraph seven, (ii) the information contained in paragraph eight,
(iii) the information in paragraph nine furnished on behalf of the Purchasers;
provided, however, that the Purchasers shall not be liable for any losses,
claims, damages or liabilities arising out of or based upon the Company's
failure to perform its obligations under Section 5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (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 satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all
25
liability on any claims that are the subject matter of such action and does not
include a statement as to or an admission of fault, culpability, or failure to
act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company or the Guarantors on the one hand and the Purchasers on the other
from the offering of the Offered Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company or the Guarantors on the one
hand and the Purchasers on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative benefits received
by the Company or the Guarantors on the one hand and the Purchasers on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company or the Guarantors
bear to the total discounts and commissions received by the Purchasers from the
Company under this Agreement. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Guarantor or the
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Purchaser shall be required to contribute
any amount in excess of the amount by which the total price at which the Offered
Securities purchased by it were resold exceeds the amount of any damages which
such Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. The Purchasers'
obligations in this subsection (d) to contribute are several in proportion to
their respective purchase obligations and not joint.
(e) The obligations of the Company or the Guarantors under this
Section shall be in addition to any liability which the Company or the
Guarantors may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Purchaser within the
meaning of the Securities Act or the Exchange Act; and the obligations of the
Purchasers under this Section shall be in addition to any
26
liability which the respective Purchasers may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Company or the Guarantors within the meaning of the Securities Act or the
Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in
their obligations to purchase Offered Securities hereunder and the aggregate
principal amount of Offered Securities that such defaulting Purchaser or
Purchasers agreed but failed to purchase does not exceed 10% of the total
principal amount of Offered Securities, CSFBC may make arrangements satisfactory
to the Company for the purchase of such Offered Securities by other persons,
including any of the Purchasers, but if no such arrangements are made by the
Closing Date, the non-defaulting Purchasers shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate principal amount of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Offered Securities and arrangements satisfactory
to CSFBC and the Company for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Purchaser or the
Company, except as provided in Section 9. As used in this Agreement, the term
"Purchaser" includes any person substituted for a Purchaser under this Section.
Nothing herein will relieve a defaulting Purchaser from liability for its
default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Purchasers set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Purchaser, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Offered Securities. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the
Offered Securities by the Purchasers is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5(h) and the respective obligations of the Company and the Purchasers
pursuant to Section 7 shall remain in effect. If the purchase of the Offered
Securities by the Purchasers is not consummated for any reason other than solely
because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (C), (D) or (E) of Section 6(b)(ii),
the Company will reimburse the Purchasers for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
27
10. Notices. All communications hereunder will be in writing and, if
sent to the Purchasers will be mailed, delivered or telegraphed and confirmed to
the Purchasers, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking Department -
Transactions Advisory Group, or, if sent to the Company or the Guarantors, will
be mailed, delivered or telegraphed and confirmed to it at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: General Counsel;
provided, however, that any notice to a Purchaser pursuant to Section 7 will be
mailed, delivered or telegraphed and confirmed to such Purchaser.
11. Representation of the Purchasers. CSFBC will act for the several
Purchasers in connection with this Purchase Agreement, and any action under this
Agreement taken by CSFBC will be binding upon all the Purchasers.
12. Representations and Agreements of the Guarantors. All
representations and warranties regarding a Guarantor shall be deemed to have
been made as of, and all agreements of the Guarantor shall be effective
following, the date it becomes a party hereto. Notwithstanding this section,
this Agreement will be binding as between the Company and the Purchasers as of
and following the date hereof.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and affiliates,
and the controlling persons referred to in Section 7, and no other person will
have any right or obligation hereunder, except that holders of Offered
Securities shall be entitled to enforce the agreements for their benefit
contained in the second and third sentences of Section 5(b) hereof against the
Company as if such holders were parties thereto.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York without regard to
principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
28
If the foregoing is in accordance with the Purchasers' understanding
of our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company, the Guarantors
and the several Purchasers in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary
The Guarantors Listed On Schedule B Hereto
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary
29
The foregoing Purchase Agreement is hereby
confirmed and accepted as of the date
first above written.
Credit Suisse First Boston Corporation,
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp.,
U.S. Bancorp Libra, a Division of
U.S. Bancorp Investments, Inc.,
Acting on behalf of themselves and as the
Representative of the several Purchasers
By Credit Suisse First Boston Corporation
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney-in-Fact
SCHEDULE A
Principal Amount of
Purchaser Number of
--------- Offered Securities
------------------
Credit Suisse First Boston Corporation.................... $ 225,000,000
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp.................................... 60,000,000
U.S. Bancorp Libra, a division of U.S. Bancorp
Investments, Inc........................................ 15,000,000
-------------
Total........................................... $ 300,000,000
=============
SCHEDULE B*
Place of
Guarantor Formation
--------- ---------
Centennial Engineering, Inc. Colorado
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation Ohio
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation (Montana) Montana
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ International, Inc. Nevada
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Leasing Corporation Nevada
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLC Nevada
National Projects, Inc. Nevada
▇▇▇▇▇▇▇ Corporation California
Washington Contractors Group, Inc. Montana
------------------------
* The following subsidiaries of RECI will become Guarantors under this
Agreement on the Closing Date upon the execution of an amendment
hereto:
Asia Badger, Inc. Delaware
Badger Energy, Inc. Delaware
Energy Overseas International, Inc. Delaware
Raytheon-Catalytic, Inc. Delaware
Raytheon Constructors, Inc. Delaware
Raytheon Constructors International, Inc. Delaware
Raytheon Demilitarization Company Delaware
Raytheon-Ebasco Overseas Ltd. Delaware
Raytheon Engineers & Constructors, Inc. Delaware
Raytheon Engineers & Constructors, Midwest, Inc. Delaware
Raytheon Engineers & Constructors UK Ltd. Delaware
2
Rust Constructors, Inc. Delaware
United Engineers Far East, Ltd. Delaware
United Engineers International, Inc. Pennsylvania
United Mid-East, Inc. Delaware
AMENDMENT NO. 1 dated as of July 7, 2000, to the
Purchase Agreement dated as of June 28, 2000, among ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Corporation, a Delaware corporation (the "Company"),
each of the subsidiaries listed on Schedule B thereto (each
such subsidiary individually, a "Guarantor" and
collectively, the "Guarantors"), and Credit Suisse First
Boston Corporation, BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp., and U.S.
Bancorp Libra, a division of U.S. Bancorp Investments, Inc.
(the "Purchasers").
A. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Purchase Agreement.
B. The Guarantors have entered into the Purchase Agreement in order to
induce the Purchasers to purchase the Offered Securities. Pursuant to Section
6(k) of the Purchase Agreement, each subsidiary of the Company as of the Closing
Date listed in the footnote to Schedule B to the Purchase Agreement is required
to become a party to the Purchase Agreement as a Guarantor by execution and
delivery of an instrument in the form of this Amendment. The undersigned
subsidiaries of the Company (the "New Guarantors") are executing this Amendment
in accordance with the requirements of the Purchase Agreement to become a party
thereto.
Accordingly, the Company, the New Guarantors and the Purchasers agree as
follows:
SECTION 1. In accordance with Section 6(k) of the Purchase Agreement, each
New Guarantor by its signature below becomes a party to the Purchase Agreement
with the same force and effect as if originally named therein as a Guarantor,
and each New Guarantor hereby (a) agrees to all the terms and provisions of the
Purchase Agreement applicable to it as a Guarantor thereunder and (b) represents
and warrants that the representations and warranties made by it as a Guarantor
thereunder are true and correct on and as of the date hereof. Each reference to
a "Guarantor" in the Purchase Agreement shall be deemed to include each New
Guarantor. The Purchase Agreement is hereby incorporated herein by reference.
SECTION 2. Each New Guarantor represents and warrants to the Purchasers
that this Amendment has been duly authorized, executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms.
SECTION 3. This Amendment may be executed in counterparts, each of which
shall constitute an original, but all of which when taken together shall
constitute a single contract. Delivery of an executed signature page to this
Amendment by facsimile transmission shall be as effective as delivery of a
manually executed counterpart of this Amendment.
SECTION 4. Except as expressly amended hereby, the Purchase Agreement
shall remain in full force and effect.
SECTION 5. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Amendment should be held invalid, illegal or unenforceable in any respect, the
validity, legality and
2
enforceability of the remaining provisions contained herein and in the Purchase
Agreement shall not in any way be affected or impaired thereby (it being
understood that the invalidity of a particular provision hereof in a particular
jurisdiction shall not in and of itself affect the validity of such provision in
any other jurisdiction). The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 10 of the Purchase Agreement. All
communications and notices hereunder to any New Guarantor shall be given to it
at the address set forth in Section 10 of the Purchase Agreement.
IN WITNESS WHEREOF, the Company, the New Guarantors and the Purchasers have
duly executed this Amendment to the Purchase Agreement as of the day and year
first above written.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CORPORATION,
by /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary
THE SUBSIDIARY GUARANTORS
LISTED ON SCHEDULE 1 HERETO,
by /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Secretary
CREDIT SUISSE FIRST BOSTON
CORPORATION,
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ CORP.,
U.S. BANCORP LIBRA, a division of
U.S. Bancorp Investments, Inc.,
acting on behalf of themselves and as the
Representatives of the several Purchasers,
By Credit Suisse First Boston Corporation
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney-in-Fact
3
SCHEDULE 1
Place of
Guarantor Formation
--------- ---------
Asia Badger, Inc. Delaware
Badger Energy, Inc. Delaware
Energy Overseas International, Inc. Delaware
Raytheon-Catalytic, Inc. Delaware
Raytheon Constructors, Inc. Delaware
Raytheon Constructors International, Inc. Delaware
Raytheon Demilitarization Company Delaware
Raytheon-Ebasco Overseas Ltd. Delaware
Raytheon Engineers & Constructors, Inc. Delaware
Raytheon Engineers & Constructors, Midwest, Inc. Delaware
Raytheon Engineers & Constructors UK Ltd. Delaware
Rust Constructors, Inc. Delaware
United Engineers Far East, Ltd. Delaware
United Engineers International, Inc. Pennsylvania
United Mid-East, Inc. Delaware