L-3 COMMUNICATIONS CORPORATION
8% SENIOR SUBORDINATED NOTES DUE 2008
PURCHASE AGREEMENT
December 3, 1998
Xxxxxx Brothers Inc.
NationsBanc Xxxxxxxxxx Securities LLC
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
L-3 Communications Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell to you (the "Initial Purchasers") $200.0
million in aggregate principal amount of its 8% Senior Subordinated Notes due
2008 (the "Series A Notes") guaranteed (the "Series A Guarantees") by
Hygienetics Environmental Services, Inc., a Delaware corporation, L-3
Communications ILEX Systems, Inc., a Delaware corporation, Southern California
Microwave, Inc., a California corporation, L-3 Communications SPD Technologies,
Inc., a Delaware corporation, L-3 Communications ESSCO, Inc., a Delaware
corporation, Storm Control Systems, Inc., a California corporation, DBS
Microwave, Inc., a California corporation , SPD Electrical Systems, Inc., a
Delaware corporation, SPD Switchgear Inc., a Delaware corporation, Pac Ord
Inc., a Delaware corporation, Xxxxxxxx Inc., a Delaware corporation, Power
Paragon, Inc., a Delaware corporation, and SPD Holdings, Inc., a Delaware
corporation (collectively, the "Guarantors"), pursuant to the terms of an
Indenture (the "Indenture") among the Company, the Guarantors and The Bank of
New York, as trustee (the "Trustee"), relating to the Series A Notes.
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Indenture.
The Series A Notes will be offered and sold to you pursuant
to an exemption from the registration requirements under the Securities Act of
1933, as amended (the "Act"). The Company has prepared a draft of the final
offering memorandum, dated December 3, 1998 (the "Draft Offering Memorandum")
and will prepare a final offering memorandum (the "Offering Memorandum"), to be
dated December 3, 1998, relating to the Company, the Series A Notes and the
Series A Guarantees. As described in the Offering Memorandum, the Company will
use all of the net proceeds from the offering of the Series A Notes to repay
substantially all of the existing indebtedness under the Company's senior
credit facilites provided by a syndicate of banks led by Bank of America
National Trust & Savings Association, as Administrative Agent (the "Senior
Credit Agreement"), and for general corporate purposes, including potential
acquisitions.
1
Upon original issuance thereof, and until such time as the
same is no longer required under the applicable requirements of the Securities
Act, the Series A Notes (and all securities issued in exchange therefor or in
substitution thereof) shall bear the following legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED
HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISION OF SECTION 5 OF THE SECURITIES
ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1) (a) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN
PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904
UNDER THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE
COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED
TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED
HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
You have advised the Company that you will make offers (the
"Exempt Resales") of the Series A Notes purchased by you hereunder on the terms
set forth in the Offering Memorandum, as amended or supplemented, solely to (i)
persons whom you reasonably believe to be "qualified institutional buyers" as
defined in Rule 144A under the Securities Act ("QIBs") and (ii) outside the
United States to persons other than U.S. Persons in offshore transactions
meeting the requirements of Rule 904 of Regulation S ("Regulations S") under
the Securities Act (such persons specified in clauses (i) and (ii) being
referred to herein as the "Eligible Purchasers"). As used herein, the terms
"offshore transaction," "United States" and "U.S. person" have the respective
meanings given to them in Regulation S. You will offer the Series A Notes to
Eligible Purchasers initially at a price equal to 99.686% of the principal
amount thereof. Such price may be changed at any time without notice.
2
Holders (including subsequent transferees) of the Series A
Notes will have the registration rights set forth in the registration rights
agreement (the "Registration Rights Agreement"), to be dated December 11, 1998
(the "Closing Date"), in the form of Exhibit A hereto, for so long as such
Series A Notes constitute "Transfer Restricted Securities" (as defined in the
Registration Rights Agreement). Pursuant to the Registration Rights Agreement,
the Company and the Guarantors will agree to file with the Securities and
Exchange Commission (the "Commission") under the circumstances set forth
therein, (i) a registration statement under the Securities Act (the "Exchange
Offer Registration Statement") relating to the Company's 8% Senior Subordinated
Notes due 2008 (the "Series B Notes" and, together with the Series A Notes, the
"Notes") to be offered in exchange for the Series A Notes, (such offer to
exchange being referred to collectively as the "Registered Exchange Offer") and
(ii) a shelf registration statement pursuant to Rule 415 under the Securities
Act (the "Shelf Registration Statement") relating to the resale by certain
holders of the Series A Notes, and to use their best efforts to cause such
Registration Statements to be declared effective. This Agreement, the Notes,
the Guarantees (as defined herein), the Indenture and the Registration Rights
Agreement are hereinafter referred to collectively as the "Operative
Documents." This is to confirm the agreements concerning the purchase of the
Series A Notes from the Company by you.
1. Representations, Warranties and Agreements of the Company
and the Guarantors. The Company and the Guarantors, jointly and severally
represent, warrant and agree that:
(a) The Offering Memorandum will be prepared by the Company
for use by the Initial Purchasers in connection with the Exempt Resales and
will not differ substantially from the Draft Offering Memorandum, unless
otherwise agreed to by the Initial Purchasers. No order or decree preventing
the use of the Offering Memorandum, or any order asserting that the
transactions contemplated by this Agreement are subject to the registration
requirements of the Securities Act has been issued and no proceeding for that
purpose has commenced or is pending or, to the knowledge of the Company and the
Guarantors, is contemplated.
(b) The Offering Memorandum as of its date and as of the
Closing Date, will not contain an untrue statement of a material fact or omit
to state a material fact necessary, in order to make the statements, in light
of the circumstances under which they were made, not misleading, except that
this representation and warranty does not apply to statements in or omissions
from the Offering Memorandum made in reliance upon and in conformity with
information relating to the Initial Purchasers furnished to the Company in
writing by or on behalf of the Initial Purchasers expressly for use therein.
(c) The market-related and customer-related data and
estimates included in the Offering Memorandum are based on or derived from
sources which the Company believes to be reliable and accurate.
(d) The Company and each of its subsidiaries (as defined in
Section 14 hereof) have been duly organized and are validly existing as
corporations or limited liability companies, as applicable, in good standing
under the laws of their respective jurisdictions of organization, are duly
qualified to do business and are in good standing as foreign corporations in
each jurisdiction in
3
which their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification except for such qualification
and good standing the failure of which, individually or in the aggregate, would
not result in a material adverse effect on the condition (financial or other),
business, prospects, properties, stockholders' equity or results of operations
of the Company and its subsidiaries taken as a whole (a "Material Adverse
Effect"), and have all power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they are engaged.
(e) All of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof contained in the Offering
Memorandum; and (i) approximately 85% of the capital stock of Cardiovascular
Computer Systems, Ltd., (ii) approximately 64% of the membership interests in
L-3 Communications Network Security Systems LLC and (iii) 100% of the issued
shares of capital stock of each other subsidiary of the Company have been duly
and validly authorized and issued and are fully paid and non-assessable and
(except for directors' qualifying shares) are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or claims,
other than (A) liens, encumbrances, equities or claims described in the
Offering Memorandum and (B) such other liens, encumbrances, equities or claims
as are not, individually or in the aggregate, material to the Company and its
subsidiaries, taken as a whole.
(f) The Company has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement, the
Indenture, the Notes, the Guarantees and the Registration Rights Agreement.
(g) This Agreement has been duly authorized, executed and
delivered by the Company and the Guarantors.
(h) The Registration Rights Agreement will be duly authorized
by the Company and each of the Guarantors, and when duly executed by the proper
officers of the Company and the Guarantors (assuming due execution and delivery
by the Initial Purchasers) and delivered by the Company and each Guarantor,
will constitute a valid and binding agreement of the Company and each
Guarantor, enforceable against the Company and each Guarantor in accordance
with its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) or an implied covenant of good
faith and fair dealing and except as rights to indemnity and contribution
thereunder may be limited by Federal or state securities laws or principles of
public policy.
(i) The Indenture will be duly authorized, and when duly
executed by the proper officers of the Company (assuming due execution and
delivery by the Trustee) and delivered by the Company, will constitute a valid
and binding agreement of the Company enforceable against the Company in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) or an
implied covenant of good faith and fair dealing; no qualification of the
Indenture under the
4
Trust Indenture Act of 1939, as amended (the "1939 Act") is required in
connection with the Exempt Resales.
(j) The Series A Notes will be duly and validly authorized by
the Company and when duly executed by the Company in accordance with the terms
of the Indenture and, assuming due authentication of the Series A Notes by the
Trustee, upon delivery to the Initial Purchasers against payment therefor in
accordance with the terms hereof will constitute valid and binding obligations
of the Company entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally,
general equitable principles (whether considered in a proceeding in equity or
at law) or an implied covenant of good faith and fair dealing; and the Series A
Notes, when issued and delivered, will conform to the description thereof
contained in the Offering Memorandum.
(k) The Series A Guarantees will be duly and validly
authorized by the Guarantors and when duly endorsed on the Series A Notes in
accordance with the terms of the Indenture and, assuming due authentication of
the Series A Notes by the Trustee, upon delivery to the Initial Purchasers
against payment therefor in accordance with the terms hereof will constitute
valid and binding obligations of each of the Guarantors entitled to the
benefits of the Indenture and enforceable against in accordance with their
terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered
in a proceeding in equity or at law) or an implied covenant of good faith and
fair dealing; and the Series A Guarantees, when issued and delivered, will
conform to the description thereof contained in the Offering Memorandum.
(l) The Series B Notes will be duly and validly authorized by
the Company and if and when duly issued and authenticated in accordance with
the terms of the Indenture and delivered in accordance with the Exchange Offer
provided for in the Registration Rights Agreement, will constitute valid and
binding obligations of the Company entitled to the benefits of the Indenture,
enforceable against the Company in accordance with their terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) or an implied covenant of good faith and fair dealing.
(m) The guarantees of the Series B Notes (the "Series B
Guarantees" and, together with the Series A Guarantees, the "Guarantees") will
be duly and validly authorized by the Guarantors and if and when duly endorsed
on the Series A Notes in accordance with the terms of the Indenture and
delivered in accordance with the Exchange Offer provided for in the
Registration Rights Agreement, will constitute valid and binding obligations of
each of the Guarantors entitled to the benefits of the Indenture and
enforceable against each of the Guarantors in accordance with their terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered
in a proceeding in equity or at law) or an implied covenant of good faith and
fair dealing.
5
(n) The execution, delivery and performance of this Agreement
and the other Operative Documents by the Company and the Guarantors and the
consummation of the transactions contemplated hereby or thereby; and the
consummation by the Company of the transactions contemplated thereby will not
conflict with or constitute a breach of, or a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, that is material to the
financial condition or prospects of the Company and its subsidiaries, taken as
a whole (collectively, the "Material Agreements"), except for breach of which,
individually, or in the aggregate, would not result in a Material Adverse
Effect, nor will such actions result in any violation of the provisions of the
charter or by-laws, or other organizational documents of the Company or any of
its subsidiaries or any material law, statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties or assets,
provided, that the provisions for indemnification and contribution hereunder
and thereunder may be limited by equitable principles and public policy
consideration; and except as may be required in connection with the
registration under the Securities Act of the Series B Notes in accordance with
the Registration Rights Agreement, qualification of the Indenture under the
1939 Act and compliance with the securities or Blue Sky laws of various
jurisdictions and except as required under the Senior Credit Agreement, no
consent, approval, authorization or order of, or filing or registration with,
any such court or governmental agency or body is required for the execution,
delivery and performance of this Agreement or any of the Operative Documents by
the Company and the Guarantors, as applicable, and the consummation of the
transactions contemplated hereby and thereby.
(o) Except as described in the Offering Memorandum and except
as provided by the Registration Rights Agreement, there are no contracts,
agreements or understandings between the Company and any person granting such
person the right (other than rights which have been waived or satisfied or
rights not exercisable in connection with the Offering Memorandum) to require
the Company to file a registration statement under the Securities Act with
respect to any debt securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the securities
registered pursuant to the Exchange Offer Registration Statement, the Shelf
Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Securities Act.
(p) Except as described in the Offering Memorandum, the
Company and the Guarantors have not sold or issued any securities with terms
that are substantially similar to the Notes and the Guarantees during the
six-month period preceding the date of the Offering Memorandum, including any
sales pursuant to Rule 144A under, or Regulations D or S of, the Securities
Act.
(q) Neither the Company nor any of its subsidiaries has
incurred, since the date of the latest audited financial statements included in
the Offering Memorandum, any liability or obligation, direct or contingent, or
entered into any transaction, in each case not in the ordinary course of
business, that is material to the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Offering Memorandum;
and, since such date, there has not been any material change in the capital
stock or material increase in the short-term or long-term debt
6
of the Company or any of its subsidiaries or any material adverse change, or
any development involving or which would reasonably be expected to involve a
Material Adverse Effect, otherwise than as described or contemplated in the
Offering Memorandum.
(r) The historical and pro forma financial statements,
together with related notes, set forth in the Offering Memorandum comply as to
form in all material respects with the requirements of Regulation S-X under the
Securities Act applicable to registration statements on Form S-1 under the
Securities Act. The historical financial statements of the Company fairly
present the financial position of the Company (or its predecessors) at the
respective dates indicated and the results of operations and cash flows of the
Company (or its predecessors) for the respective periods indicated, in
accordance with generally accepted accounting principles consistently applied
throughout such periods. Such pro forma financial statements have been prepared
on a basis consistent with such historical statements of the Company, except
for the pro forma adjustments specified therein, and give effect to assumptions
made on a reasonable basis and in good faith and present fairly the historical
and proposed transactions contemplated by the Offering Memorandum and this
Agreement. The other financial and statistical information and data included in
the Offering Memorandum, historical and pro forma, have been derived from the
financial records of the Company (or its predecessors) and, in all material
respects, have been prepared on a basis consistent with such books and records
of the Company (or its predecessors), except as disclosed therein.
(s) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company, whose report appears in the Offering
Memorandum and who will deliver the letter referred to in Section 7(f) hereof,
are independent public accountants under Rule 101 of the AICPA's Code of
Professional Conduct, and its interpretation and rulings; Ernst & Young LLP and
KPMG Peat Marwick LLP, whose reports appear in the Offering Memorandum and who
will deliver the letters referred to in Sections 7(g) and 7(h) hereof, are
independent accountants under Rule 101 of the AICPA's Code of Professional
Conduct, and its interpretation and rulings; and Xxxxx Xxxxxxxx LLP, who will
deliver the letter referred to in Section 7(i) hereof, are independent
accountants under Rule 101 of the AICPA's Code of Professional Conduct, and its
interpretation and rulings.
(t) The Company and each of its subsidiaries have good and
marketable title to all property (real and personal) described in the Offering
Memorandum as being owned by them, free and clear of all liens, claims,
security interests or other encumbrances except such as are described in the
Offering Memorandum or, to the extent that any such liens, claims, security
interests or other encumbrances would not have a Material Adverse Effect
(individually or in the aggregate) and all the material property described in
the Offering Memorandum as being held under lease by the Company and its
subsidiaries is held by them under valid, subsisting and enforceable leases,
with only such exceptions as would not have a Material Adverse Effect
(individually or in the aggregate).
(u) The Company and each of its subsidiaries own or possess
adequate rights to use all material patents, trademarks, service marks, trade
names, copyrights, licenses, inventions, trade secrets and other rights, and
all registrations or applications relating thereto, described in the Offering
Memorandum as being owned by them or necessary for the conduct of their
business, except as such would not have a Material Adverse Effect (individually
or in the aggregate), and the Company is not aware of any pending or threatened
claim to the contrary or any pending or threatened challenge by any other
person to the rights of the Company and its subsidiaries with
7
respect to the foregoing which, if determined adversely to the Company and its
subsidiaries would have a Material Adverse Effect (individually or in the
aggregate).
(v) Except as described in the Offering Memorandum, there are
no legal or governmental proceedings pending or, to the knowledge of the
Company, threatened, against the Company or any of its subsidiaries or to which
the Company or any of its subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, are reasonably
likely to cause a Material Adverse Effect.
(w) There are no contracts or other documents which would be
required to be described in a prospectus contained in a registration statement
on Form S-1 by the Securities Act or by the rules and regulations thereunder
which have not been described in the Offering Memorandum.
(x) No material relationship, direct or indirect, exists
between or among the Company on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other hand, except
as described in the Offering Memorandum.
(y) The Company is not involved in any strike, job action or
labor dispute with any group of employees that would have a Material Adverse
Effect, and, to the Company's knowledge, no such action or dispute is
threatened.
(z) Except as disclosed in the Offering Memorandum, the
Company is in compliance in all material respects with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder ("ERISA");
no "reportable event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) for which the Company would have any
material liability; the Company has not incurred and does not expect to incur
any material liability under (i) Title IV of ERISA with respect to termination
of, or withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code") (other than contributions in
the normal course which are not in default); and each "pension plan" for which
the Company would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects and nothing
has occurred, whether by action or by failure to act, which would reasonably be
expected to cause the loss of such qualification.
(aa) The Company and its subsidiaries have filed all federal,
state and local income and franchise tax returns required to be filed through
the date hereof and have paid all taxes due thereon, and no tax deficiency has
been determined adversely to the Company or any of its subsidiaries nor does
the Company have any knowledge of any tax deficiency which, if determined
adversely to the Company and its subsidiaries, might have a Material Adverse
Effect.
(bb) Neither the Company nor any of its subsidiaries (i) is
in violation of its charter or by-laws or other organizational document, (ii)
is in default in any material respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in any
Material Agreement
8
or (iii) is in violation in any material respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its property or
assets may be subject or has failed to obtain any material license, permit,
certificate, franchise or other governmental authorization or permit necessary
to the ownership of its property or to the conduct of its business, except as
would not, individually or in the aggregate, have a Material Adverse Effect.
(cc) To the best of the Company's knowledge, neither the
Company nor any of its subsidiaries, nor any director, officer, agent, employee
or other person associated with or acting on behalf of the Company or any of
its subsidiaries, has used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity;
made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds or violated or is in
violation of any provision of the Foreign Corrupt Practices Act of 1977; except
as such that would not have a Material Adverse Effect.
(dd) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of toxic wastes,
medical wastes, hazardous wastes or hazardous substances by the Company or any
of its subsidiaries (or, to the knowledge of the Company, any of their
predecessors in interest) at, upon or from any of the property now or
previously owned or leased by the Company or its subsidiaries in violation of
any applicable law, ordinance, rule, regulation, order, judgment, decree or
permit or which would require remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit, except for any
violation or remedial action which would not have, or would not be reasonably
likely to have, singularly or in the aggregate with all such violations and
remedial actions, a Material Adverse Effect; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of any kind
onto such property or into the environment surrounding such property of any
toxic wastes, medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any of its subsidiaries or with
respect to which the Company has knowledge, except for any such spill,
discharge, leak, emission, injection, escape, dumping or release which would
not have or would not be reasonably likely to have, singularly or in the
aggregate with all such spills, discharges, leaks, emissions, injections,
escapes, dumpings and releases, a Material Adverse Effect; and the terms
"hazardous wastes," "toxic wastes," "hazardous substances" and "medical wastes"
shall have the meanings specified in any applicable local, state, federal and
foreign laws or regulations with respect to environmental protection.
(ee) Neither the Company nor any subsidiary is and upon sale
of the Series A Notes to be issued and sold thereby in accordance herewith and
the application of the net proceeds to the Company of such sale as described in
the Offering Memorandum under the caption "Use of Proceeds," will not be, an
"investment company" within the meaning of such term under the United States
Investment Company Act of 1940 and the rules and regulations of the Commission
thereunder.
(ff) Neither the Company nor any affiliate (as defined in
Rule 501(b) of Regulation D ("Regulation D") under the Securities Act) of the
Company has directly, or through any agent (provided that no representation is
made as to the Initial Purchasers or any person acting on its behalf), (i)
sold, offered for sale, solicited offers to buy or otherwise negotiated in
respect of, any security (as defined in the Securities Act) which is or could
be integrated with the offering and
9
sale of the Notes in a manner that would require the registration of the Series
A Notes under the Securities Act or (ii) engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D,
including, but not limited to, advertisements, articles, notices or other
communications published in any newspaper, magazine, or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising) in
connection with the offering of the Series A Notes.
(gg) Except as permitted by the Securities Act, the Company
has not distributed and, prior to the later to occur of the Closing Date and
completion of the distribution of the Series A Notes, will not distribute any
offering material in connection with the offering and sale of the Series A
Notes other than the Offering Memorandum.
(hh) When the Series A Notes are issued and delivered
pursuant to this Agreement, such Series A Notes will not be of the same class
(within the meaning of Rule 144A under the Securities Act) as securities of the
Company that are listed on a national securities exchange registered under
Section 6 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") or that are quoted in a U.S. automated inter-dealer quotation system.
(ii) Assuming (i) that your representations and warranties in
Section 2 are true, (ii) compliance by you with your covenants set forth in
Section 2 and (iii) that each of the Eligible Purchasers is a QIB or a person
who is not a "U.S. person" who acquires the Series A Notes outside the United
States in an "offshore transaction" (within the meaning of Rule 904 of
Regulation S), the purchase of the Series A Notes by you pursuant hereto and
the resale of the Series A Notes pursuant hereto pursuant to the Exempt Resales
is exempt from the registration requirements of the Securities Act.
(jj) None of the Company or any of its affiliates or any
person acting on its or their behalf has engaged or will engage in any directed
selling efforts within the meaning of Regulation S with respect to the Notes,
and the Company and its affiliates and all persons acting on its of their
behalf have complied with and will comply with the offering restrictions
requirements of Regulation S in connection with the offering of the Notes
outside of the United States. The sales of the Series A Notes pursuant to
Regulation S are "offshore transactions" and are not part of a plan or scheme
to evade the registration provision of the Securities Act. The Company makes no
representation in this paragraph (jj) with respect to the Initial Purchasers.
(kk) The Company is a "reporting issuer" as defined in Rule
902 under the Securities Act.
2. Representations, Warranties and Agreements of the Initial
Purchasers. Each Initial Purchaser represents and warrants with respect to
itself that:
(a) Such Initial Purchaser is a QIB or an institutional
accredited investor as defined in Rule 501(a)(1), (2), (3) and (7) under the
Securities Act (each, an "Accredited Institution"), in either case with such
knowledge and experience in financial and business matters as are necessary in
order to evaluate the merits and risks of an investment in the Series A Notes.
10
(b) Such Initial Purchaser (i) is not acquiring the Series A
Notes with a view to any distribution thereof or with any present intention of
offering or selling any of the Series A Notes in a transaction that would
violate the Securities Act or the securities laws of any State of the United
States or any other applicable jurisdiction; (ii) in connection with the Exempt
Resales, will solicit offers to buy the Notes only from, and will offer to sell
the Notes only to, the Eligible Purchasers in accordance with this Agreement
and on the terms contemplated by the Offering Memorandum; and (iii) will not
offer or sell the Notes, nor has it offered or sold the Notes by, or otherwise
engaged in, any form of general solicitation or general advertising (within the
meaning of Regulation D; including, but not limited to, advertisements,
articles, notices or other communications published in any newspaper, magazine,
or similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general solicitation or
general advertising) in connection with the offering of the Series A Notes.
(c) The Notes have not been and will not be 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 under the Securities Act or pursuant to an exemption from the
registration requirements of the Securities Act. The Initial Purchasers
represent that they have not offered, sold or delivered the Notes, and will not
offer, sell or deliver the Notes (i) as part of its distribution at any time or
(ii) otherwise until 40 days after the later of the commencement of the
offering of the Series A Notes and the Closing Date (such period, the
"Restricted Period"), within the United States or to, or for the account or
benefit of U.S. persons, except in accordance with Rule 144A under the
Securities Act, or to Accredited Institutions in transactions that are exempt
from the registration requirements of the Securities Act. Accordingly, each
Initial Purchaser represents and agrees that neither it, its affiliates nor any
persons acting on its or their behalf has engaged or will engage in any
directed selling efforts within the meaning of Rule 901(b) of Regulation S with
respect to the Notes, and it, its affiliates and all persons acting on its
behalf have complied and will comply with the offering restrictions
requirements of Regulation S.
(d) Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Notes (other than a sale pursuant to Rule 144A in
transactions that are exempt from the registration requirements of the
Securities Act), it will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases Notes
from it during the Restricted Period a confirmation or notice substantially to
the following effect:
"The Notes covered hereby have not been registered under the
U.S. 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
their distribution at any time or (ii) otherwise until 40
days after the later of the commencement of the offering or
the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities
Act. Terms used above have the meanings assigned to them in
Regulation S."
Such Initial Purchaser further agrees that it has not entered
and will not enter into any contractual arrangement with respect to the
distribution or delivery of the Notes, except with its affiliates or with the
prior written consent of the Company.
11
(e) Such Initial Purchaser further represents and agrees that
(i) it has not offered or sold and will not offer or sell any Notes to persons
in the United Kingdom prior to the expiry of the period of six months from the
issue date of the Notes, 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 Financial Services Xxx 0000 with respect to anything done by
it in relation to the Notes 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 Notes to a person who is of a kind described in Article 11(3) of the
Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1995
or is a person to whom the document may otherwise lawfully be issued or passed
on.
(f) Such Initial Purchaser agrees not to cause any
advertisement of the Notes to be published in any newspaper or periodical or
posted in any public place and not to issue any circular relating to the Notes,
except such advertisements as include the statements required by Regulation S.
(g) The sales of the Series A Notes pursuant to Regulation S
are "offshore transactions" and are not part of a plan or scheme to evade the
registration provisions of the Securities Act.
(h) Such Initial Purchaser understands that the Company and,
for purposes of the opinions to be delivered to you pursuant to Section 7
hereof, counsel to the Company, General Counsel to the Company and counsel to
the Initial Purchasers, will rely upon the accuracy and truth of the foregoing
representations and you hereby consent to such reliance.
The terms used in this Section 2 that have meanings assigned
to them in Regulation S are used herein as so defined.
Each Initial Purchaser further agrees that, in connection
with the Exempt Resales, it will solicit offers to buy the Series A Notes only
from, and will offer to sell the Series A Notes only to, the Eligible
Purchasers in Exempt Resales.
3. Purchase of the Notes and the Guarantees by the Initial
Purchasers. On the basis of the representations and warranties contained in,
and subject to the terms and conditions of, this Agreement, the Company agrees
to sell the Series A Notes (and cause the Guarantors to issue the Series A
Guarantees) to the several Initial Purchasers and each of the Initial
Purchasers, severally and not jointly, agrees to purchase the aggregate
principal amount of Series A Notes set opposite that Initial Purchaser's name
in Schedule 1 hereto. Each Initial Purchaser will purchase such aggregate
principal amount of Series A Notes at an aggregate purchase price equal to
96.861% of the principal amount thereof (the "Purchase Price").
12
The Company shall not be obligated to deliver any of the
Series A Notes and Series A Guarantees to be delivered on the Closing Date (as
defined herein), except upon payment for all the Series A Notes to be purchased
on the Closing Date as provided herein.
4. Delivery of and Payment for the Notes and the Guarantees.
(a) Delivery of and payment for the Series A Notes and the
Series A Guarantees shall be made at the office of Xxxxxx & Xxxxxxx, 000 Xxxxx
Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 at 10:00 A.M., New York City time, on the sixth
full business day following the date of this Agreement or at such other date or
place as shall be determined by agreement between the Initial Purchasers and
the Company.
(b) On the Closing Date, one or more Series A Notes in
definitive form, registered in the name of Cede & Co., as nominee of the
Depository Trust Company ("DTC"), or such other names as the Initial Purchasers
may request upon at least one business days' notice to the Company, having an
aggregate principal amount corresponding to the aggregate principal amount of
Series A Note sold pursuant to Eligible Resales (collectively, the "Global
Note"), shall be delivered by the Company to the Initial Purchasers against
payment by the Initial Purchasers of the purchase price thereof by wire
transfer of immediately available funds as the Company may direct by written
notice delivered to you two business days prior to the Closing Date. The Global
Note in definitive form shall be made available to you for inspection not later
than 2:00 p.m. on the business day prior to the Closing Date.
(c) Time shall be of the essence, and delivery at the time
and place specified pursuant to this Agreement is a further condition of the
obligation of each Initial Purchaser hereunder.
5. Further Agreements of the Company. The Company agrees:
(a) To advise you promptly and, if requested by you, to
confirm such advice in writing, of (i) the issuance by any state securities
commission of any stop order suspending the qualification or exemption from
qualification of any Series A Notes or Series A Guarantees for offering or sale
in any jurisdiction, or the initiation or threatening of any proceeding for
such purpose by the Commission or any state securities commission or other
regulatory authority, and (ii) the happening of any event that makes any
statement of a material fact made in the Offering Memorandum untrue or which
requires the making of any additions to or changes in the Offering Memorandum
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading. The Company shall use all commercially
reasonable efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption of the Series A Notes or Series A
Guarantees under any state securities or Blue Sky laws and, if at any time any
state securities commission shall issue any stop order suspending the
qualification or exemption of the Series A Notes or Series A Guarantees under
any state securities or Blue Sky laws, the Company shall use every reasonable
effort to obtain the withdrawal or lifting of such order at the earliest
possible time.
13
(b) To furnish to you, as many copies of the Offering
Memorandum, and any amendments or supplements thereto, as you may reasonably
request. Such copies shall be furnished without charge for use in connection
with the Exempt Resales for the nine month period immediately following the
Closing Date. The Company consents to the use of the Offering Memorandum, and
any amendments and supplements thereto required pursuant to this Agreement, by
you in connection with the Exempt Resales that are in compliance with this
Agreement.
(c) Not to amend or supplement the Offering Memorandum prior
to the Closing Date or during the period referred to in (d) below unless you
shall previously have been advised of, and shall not have reasonably objected
to, such amendment or supplement within a reasonable time, but in any event not
longer than five days after being furnished a copy of such amendment or
supplement. The Company shall promptly prepare, upon any reasonable request by
you, any amendment or supplement to the Offering Memorandum that may be
necessary or advisable in connection with Exempt Resales.
(d) If, in connection with any Exempt Resales or market
making transactions after the date of this Agreement and prior to the
consummation of the Exchange Offer, any event shall occur that, in the judgment
of the Company or in the judgment of counsel to you, makes any statement of a
material fact in the Offering Memorandum untrue or that requires the making of
any additions to or changes in the Offering Memorandum in order to make the
statements in the Offering Memorandum, in light of the circumstances under
which they were made at the time that the Offering Memorandum is delivered to
prospective Eligible Purchasers, not misleading, or if it is necessary to amend
or supplement the Offering Memorandum to comply with applicable law, the
Company shall promptly notify you of such event and prepare an appropriate
amendment or supplement to the Offering Memorandum so that (i) the statements
in the Offering Memorandum as amended or supplemented will, in light of the
circumstances under which they were made at the time that the Offering
Memorandum is delivered to prospective Eligible Purchasers, not be misleading
and (ii) the Offering Memorandum will comply with applicable law.
(e) Promptly from time to time to take such action as the
Initial Purchasers may reasonably request to qualify the Series A Notes and the
Series A Guarantees for offering and sale under the securities laws of such
jurisdictions as the Initial Purchasers may request (provided, however, that
the Company shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process in any jurisdiction
in which it is not now so subject) and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of the Series A Notes and the
Series A Guarantees.
(f) Prior to the Closing Date, to furnish to you, as soon as
they have been prepared, a copy of any internal consolidated financial
statements of the Company for any period subsequent to the period covered by
the financial statements appearing in the Offering Memorandum.
14
(g) To use all commercially reasonable efforts to do and
perform all things required to be done and performed under this Agreement by it
prior to or after the Closing Date and to satisfy all conditions precedent on
its part to the delivery of the Series A Notes.
(h) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Securities
Act) that would be integrated with the sale of the Series A Notes in a manner
that would require the registration under the Securities Act of the sale to you
or the Eligible Purchasers of Series A Notes.
(i) During any period in which the Company is not subject to
Section 13 or 15(d) of the Exchange Act within the two year period following
the Closing Date, to make available to any registered holder or beneficial
owner of Series A Notes in connection with any sale thereof and any prospective
purchaser of such Series A Notes from such registered holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Securities Act.
(j) To use all commercially reasonable efforts to effect the
inclusion of the Notes in the National Association of Securities Dealers, Inc.
Automated Quotation System - PORTAL ("PORTAL").
(k) To apply the net proceeds from the sale of the Series A
Notes being sold by the Company as set forth in the Offering Memorandum under
the caption "Use of Proceeds."
(l) To take such steps as shall be necessary to ensure that
neither the Company nor any subsidiary shall become an "investment company"
within the meaning of such term under the United States Investment Company Act
of 1940 and the rules and regulations of the Commission thereunder.
(m) To assist the Initial Purchasers and counsel for the
Initial Purchasers in connection with their continuing due diligence.
(n) To take such steps as shall be necessary to ensure that
all the subsidiaries of the Company that are not designated as "unrestricted
subsidiaries" in accordance with the Indenture will be guarantors of the Notes.
(o) To use its reasonable best efforts to obtain a consent
under the Senior Credit Agreement to the issuance and sale of the Notes and the
use of proceeds therefrom.
6. Expenses. The Company agrees to pay: (a) the costs
incident to the authorization, issuance, sale and delivery of the Notes and the
Guarantees and any taxes payable in that connection; (b) the costs incident to
the preparation, printing and filing of the Offering Memorandum and any
amendments and supplements thereto; (c) the costs of distributing the Offering
Memorandum and any amendment or supplement to the Offering Memorandum, all as
provided in this Agreement; (d) the fees, disbursements and expenses of the
Company's counsel and accountants; (e) all expenses and listing fees in
connection with the application for quotation of the Series A Notes in PORTAL;
(f) all fees and expenses (including fees and expenses of counsel) of the
Company in connection with approval of the Notes by DTC for "book-entry"
transfer; (g) the
15
fees and expenses of qualifying the Notes and Guarantees under the securities
laws of the several jurisdictions as provided in Section 5(e) and of preparing,
printing and distributing a Blue Sky Memorandum (including related fees and
expenses of counsel to the Initial Purchaser); (h) any fees charged by
securities rating services for rating the Notes and Guarantees; (i) all costs
and expenses incident to the performance of the Company's obligations under
Section 9 and (j) all other costs and expenses incident to the performance of
the obligations of the Company and the Guarantors.
7. Conditions of Initial Purchasers' Obligations. The
respective obligations of the Initial Purchasers hereunder are subject to the
accuracy, when made and on the Closing Date, of the representations and
warranties of the Company and the Guarantors contained herein, to the
performance by the Company and the Guarantors of their obligations hereunder,
and to each of the following additional terms and conditions:
(a) No Initial Purchaser shall have discovered and disclosed
to the Company on or prior to the Closing Date that the Offering Memorandum or
any amendment or supplement thereto contains an untrue statement of a fact
which, in the opinion of Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers,
is material or omits to state a fact which, in the opinion of such counsel, is
material and is necessary to make the statements, in the light of the
circumstances under which they were made, not misleading.
(b) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement, the other
Operative Documents, the Offering Memorandum, and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
reasonably satisfactory in all material respects to counsel for the Initial
Purchasers, and the Company shall have furnished to such counsel all documents
and information that they may reasonably request to enable them to pass upon
such matters.
(c) Xxxxxxx Xxxxxxx & Xxxxxxxx shall have furnished to the
Initial Purchasers, its written opinion, as counsel to the Company, addressed
to the Initial Purchasers and dated the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchasers, to the effect that:
(i) The Company and each of the Delaware Guarantors have been
duly organized and are validly existing as corporations and in good
standing under the laws of Delaware, and have all corporate power and
authority necessary to conduct their respective businesses as
described in the Offering Memorandum;
(ii) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully
paid and non-assessable; and all of the issued shares of capital stock
of each Delaware subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable (except for
directors' qualifying shares) and, based solely on our examination of
each such subsidiary's stock ledger and minute book, all such shares
are held of record by the Company and/or a subsidiary of the Company;
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming that the Indenture is the valid
and legally binding obligation of the
16
Trustee, constitutes a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) or
an implied covenant of good faith and fair dealing.
(iv) The Series A Notes have been duly authorized, executed
and issued by the Company and, assuming due authentication thereof by
the Trustee and upon payment and delivery in accordance with the terms
of the Purchase Agreement, will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms and entitled to the benefits of the
Indenture subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) or
an implied covenant of good faith and fair dealing; and the Notes,
when issued and delivered, will conform to the description thereof
contained in the Prospectus.
(v) The Series A Guarantees have been duly authorized,
executed and issued by the respective Guarantors and, assuming due
authentication of the Series A Notes by the Trustee, upon payment and
delivery in accordance with the terms of the Purchase Agreement will
constitute valid and legally binding obligations of each of the
Guarantors enforceable in accordance with their terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) or an implied
covenant of good faith and fair dealing.
(vi) The Series B Notes and the Series B Guarantees have been
duly authorized.
(vii) The statements contained in the Offering Memorandum
under the captions "Risk Factors--Subordination," "Risk
Factors--Restrictions Imposed by the Senior Credit Facilities and the
Indentures," "Business--Pension Plans," "Certain Relationships and
Related Transactions," "Management--Limitations on Liability and
Indemnification Matters," "Management--1997 Stock Option Plan,"
"Management-Employment Agreements," "Description of Certain
Indebtedness," "Description of the Notes" insofar as they describe
charter documents, contracts, statutes, rules and regulations and
other legal matters, constitute an accurate summary thereof in all
material respects;
(viii) The statements made in the Offering Memorandum under
the caption "United States Federal Tax Considerations," insofar as
they purport to constitute summaries of matters of United States
federal tax law and regulations or legal conclusions with respect
thereto, constitute accurate summaries of the matters described
therein in all material respects.
17
(ix) To such counsel's knowledge, there are no contracts or
documents of a character required by the Securities Act or by the
rules and regulations thereunder to be described in a prospectus
included in a registration statement on Form S-1 which are not
described in the Offering Memorandum;
(x) This Agreement has been duly authorized, executed and
delivered by the Company and the Guarantors;
(xi) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and the Guarantors
and, assuming due authorization, execution and delivery thereof by the
Initial Purchasers, constitutes a valid and legally binding obligation
of the Company and each of the Guarantors enforceable against the
Company and each of the Guarantors in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) or
an implied covenant of good faith and fair dealing.
(xii) The issue and sale of the Series A Notes and the Series
A Guarantees being delivered on the Closing Date by the Company and
the Guarantors and the compliance by the Company and the Guarantors,
with all of the provisions of this Agreement and the other Operative
Documents and the consummation of the transactions contemplated hereby
and thereby will not breach or result in a default under any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument which was filed as an exhibit to the Company's most
recent Registration Statement on Form S-1 or is identified as such on
a list provided to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such actions
violate the Certificate of Incorporation or By-Laws or other
organizational documents of the Company or any of its subsidiaries or
any federal or New York statute, the Delaware Limited Liability
Company Act or the Delaware General Corporation Law or any rule or
regulation that has been issued pursuant to any federal or New York
statute, the Delaware Limited Liability Company Act or the Delaware
General Corporation Law or any order known to such counsel issued
pursuant to any federal or New York statute, the Delaware Limited
Liability Company Act or the Delaware General Corporation Law by any
court or governmental agency or body or court having jurisdiction over
the Company or any of its subsidiaries or any of their properties or
assets; and no consent, approval, authorization, order, registration
or qualification of or with any federal or New York governmental
agency or body or any Delaware governmental agency or body acting
pursuant to the Delaware Limited Liability Company Act, the Delaware
General Corporation Law or, to such counsel's knowledge, any federal
or New York court or any Delaware court acting pursuant to the
Delaware Limited Liability Company Act, the Delaware General
Corporation Law is required for issuance and sale of the Notes by the
Company (and the guarantee of such Notes by the Guarantors), except
for the registration under the Securities Act of the Series B Notes in
accordance with the Registration Rights Agreement and the
qualification of the Indenture under the 1939 Act, and such consents,
approvals, authorizations, registrations or qualifications as may be
18
required state securities or Blue Sky laws in connection with the
purchase and distribution of the Series A Notes and Series A
Guarantees by the Initial Purchasers. The opinions set forth in this
paragraph are based upon our consideration of only those statutes,
rules and regulations which, in such counsel's experience, are
normally applicable to securities underwriting transactions.
(xiii) No registration of the Series A Notes under the
Securities Act and no qualification of the Indenture under the 1939
Act is required for the offer and sale of the Series A Notes by the
Company to the Initial Purchasers or the reoffer and resale of the
Series A Notes by the Initial Purchasers to the initial purchasers
therefrom solely in the manner contemplated by the Offering
Memorandum, the Purchase Agreement and the Indenture.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the federal laws of the United States
and the laws of the State of New York, the Delaware Limited Liability
Company Act and the Delaware General Corporation Law.
Such counsel shall also have furnished to the Initial Purchasers a
written statement, addressed to the Initial Purchasers and dated the
Closing Date. Such counsel has not independently verified the
accuracy, completeness or fairness of the statements made or included
in the Offering Memorandum and take no responsibility therefor, except
as and to the extent set forth in paragraph (vii) above. In the course
of the preparation by the Company of the Offering Memorandum, such
counsel participated in conferences with certain officers and
employees of the Company, with representatives of
PricewaterhouseCoopers LLP, Ernst & Young LLP, KPMG Peat Marwick LLP,
Xxxxx Xxxxxxxx LP and with counsel to the Company. Based upon such
counsel's examination of the Offering Memorandum, such counsel's
investigations made in connection with the preparation of the Offering
Memorandum and such counsel's participation in the conferences
referred to above, such counsel has no reason to believe that the
Offering Memorandum, as of its date and as of the Closing Date,
contains or contained any untrue statement of a material fact or omits
or omitted 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, except that in each case such counsel need
not express belief with respect to the financial statements or other
financial data contained in the Offering Memorandum.
(d) Xxxxxxxxxxx X. Xxxxxxx, General Counsel of the Company, shall have
furnished to the Initial Purchasers his written opinion, as General Counsel to
the Company, addressed to the Initial Purchasers and dated the Closing Date, in
form and substance reasonably satisfactory to the Initial Purchasers, to the
effect that:
(i) To such counsel's knowledge, the Company and each of its
subsidiaries have good and marketable title to all property (real and
personal) described in the Offering Memorandum as being owned by them,
free and clear of all liens, claims, security interests or other
encumbrances except such as are described in the Offering Memorandum
or, to the extent that any such liens, claims, security interests or
other encumbrances would not have a Material Adverse Effect
19
(individually or in the aggregate) and all the material property
described in the Offering Memorandum as being held under lease by the
Company and its subsidiaries is held by them under valid, subsisting
and enforceable leases, with only such exceptions as would not have a
Material Adverse Effect (individually or in the aggregate);
(ii) To such counsel's knowledge and except as otherwise
disclosed in the Offering Memorandum, there are no legal or
governmental proceedings pending or threatened, against the Company or
any of its subsidiaries or to which the Company or any of its
subsidiaries is a party or of which any property or assets of the
Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, are reasonably
likely to cause a Material Adverse Effect;
(iii) To such counsel's knowledge and except as otherwise
disclosed in the Offering Memorandum, there are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to include such
person's securities in the securities registered pursuant to the
Exchange Offer Registration Statement or the Shelf Registration
Statement;
(iv) None of the issue and sale of the Notes and Guarantees
being delivered on such Closing Date by the Company and the Guarantors
and the compliance by the Company and the Guarantors, as applicable,
with all of the provisions of this Agreement and the consummation of
the transactions contemplated hereby and thereby requires any consent,
approval, authorization or other order of, or registration or filing
with, any federal court, federal regulatory body, federal
administrative agency or other federal governmental official having
authority over government procurement matters (provided, that the
opinion contained in this paragraph (iv) may be delivered by other
counsel reasonably satisfactory to the Initial Purchasers).
(e) The Initial Purchasers shall have received from Xxxxxx & Xxxxxxx,
counsel for the Initial Purchasers, such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the Series A Notes, the Series A
Guarantees, the Offering Memorandum and other related matters as the Initial
Purchasers may reasonably require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of enabling
them to pass upon such matters.
(f) On the Closing Date, the Initial Purchasers shall have received
from PricewaterhouseCoopers LLP, a letter, in form and substance satisfactory
to the Initial Purchasers, addressed to the Initial Purchasers (i) confirming
that they are independent public accountants under Rule 101 of the AICPA's Code
of Professional Conduct, and its interpretation and rulings and (ii) stating,
as of the Closing Date, the conclusions and findings of such firm with respect
to the financial information and other matters ordinarily covered by
accountants' "comfort letters" to Initial Purchasers in connection with
registered public offerings.
20
(g) On the Closing Date, the Initial Purchasers shall have received
from Ernst & Young LLP, a letter, in form and substance satisfactory to the
Initial Purchasers, addressed to the Initial Purchasers (i) confirming that
they are independent public accountants under Rule 101 of the AICPA's Code of
Professional Conduct, and its interpretation and rulings and (ii) stating, as
of the Closing Date, the conclusions and findings of such firm with respect to
the financial information and other matters ordinarily covered by accountants'
"comfort letters" to Initial Purchasers in connection with registered public
offerings.
(h) On the Closing Date, the Initial Purchasers shall have received
from KPMG Peat Marwick LLP, a letter, in form and substance satisfactory to the
Initial Purchasers, addressed to the Initial Purchasers (i) confirming that
they are independent public accountants under Rule 101 of the AICPA's Code of
Professional Conduct, and its interpretation and rulings and (ii) stating, as
of the Closing Date, the conclusions and findings of such firm with respect to
the financial information and other matters ordinarily covered by accountants'
"comfort letters" to Initial Purchasers in connection with registered public
offerings.
(i) On the Closing Date, the Initial Purchasers shall have received
from Xxxxx Xxxxxxxx LP, a letter, in form and substance satisfactory to the
Initial Purchasers, addressed to the Initial Purchasers (i) confirming that
they are independent public accountants under Rule 101 of the AICPA's Code of
Professional Conduct, and its interpretation and rulings and (ii) stating, as
of the Closing Date, the conclusions and findings of such firm with respect to
the financial information and other matters ordinarily covered by accountants'
"comfort letters" to Initial Purchasers in connection with registered public
offerings.
(j) The Company and the Guarantors shall have furnished to the Initial
Purchasers a certificate, dated the Closing Date, of their respective Chairman
of the Board, their respective President or a Vice President and their
respective chief financial officer stating that:
(i) The representations and warranties of the Company and the
Guarantors in Section 1 are true and correct as of the Closing Date;
the Company and the Guarantors have complied with all their agreements
contained herein; and the conditions set forth in Sections 7(a) and
7(k) have been fulfilled; and
(ii) They have carefully examined the Offering Memorandum
and, in their opinion (A) the Offering Memorandum as of its date and
as of the Closing Date, did not include any untrue statement of a
material fact and did not omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and (B) since the date of the Offering Memorandum, no
event has occurred which should have been set forth in a supplement or
amendment to the Offering Memorandum.
(k) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Offering Memorandum any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Offering Memorandum
or (ii) since such date there shall not have been any change in the capital
stock or long-term debt of the Company or any of its
21
subsidiaries or any change, or any development involving a prospective change,
in or affecting the business, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Offering Memorandum,
the effect of which, in any such case described in clause (i) or (ii), is, in
the judgment of the Initial Purchasers, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Notes and the Guarantees being delivered on the Closing Date on
the terms and in the manner contemplated in the Offering Memorandum.
(l) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities.
(m) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or
minimum prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall
have been declared by Federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an escalation
in hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv) there
shall have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international conditions on
the financial markets in the United States shall be such) as to make it, in the
judgment of the Initial Purchasers, impracticable or inadvisable to proceed
with the public offering or delivery of the Notes being delivered on the
Closing Date on the terms and in the manner contemplated in the Offering
Memorandum.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Initial Purchasers.
8. Indemnification and Contribution.
(a) The Company and the Guarantors shall jointly and severally
indemnify and hold harmless each Initial Purchaser, its officers and employees
and each person, if any, who controls any Initial Purchaser within the meaning
of the Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to purchases and
sales of Notes and Guarantees), to which that Initial Purchaser, officer,
employee or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in the Offering Memorandum or in any amendment or
supplement thereto or (B) in any blue sky
22
application or other document prepared or executed by the Company (or based
upon any written information furnished by the Company) specifically for the
purpose of qualifying any or all of the Series A Notes under the securities
laws of any state or other jurisdiction (any such application, document or
information being hereinafter called a "Blue Sky Application"), (ii) the
omission or alleged omission to state in the Offering Memorandum, or in any
amendment or supplement thereto, or in any Blue Sky Application any material
fact required to be stated therein or necessary to make the statements therein
not misleading or (iii) any act or failure to act or any alleged act or failure
to act by any Initial Purchaser in connection with, or relating in any manner
to, the Notes or the offering contemplated hereby, and which is included as
part of or referred to in any loss, claim, damage, liability or action arising
out of or based upon matters covered by clause (i) or (ii) above (provided that
the Company and the Guarantors shall not be liable under this clause (iii) to
the extent that it is determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such acts or failures to act undertaken or omitted to be
taken by such Initial Purchaser through its gross negligence or willful
misconduct), and shall reimburse each Initial Purchaser and each such officer,
employee or controlling person promptly upon demand for any legal or other
expenses reasonably incurred by that Initial Purchaser, officer, employee or
controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company and the Guarantors
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
the Offering Memorandum, or in any such amendment or supplement, or in any Blue
Sky Application, in reliance upon and in conformity with written information
concerning such Initial Purchaser furnished to the Company by or on behalf of
any Initial Purchaser specifically for inclusion therein. The foregoing
indemnity agreement is in addition to any liability which the Company and the
Guarantors may otherwise have to any Initial Purchaser or to any officer,
employee or controlling person of that Initial Purchaser.
(b) Each Initial Purchaser, severally and not jointly, shall indemnify
and hold harmless the Company, the Guarantors, their officers and employees,
each of their directors, and each person, if any, who controls the Company and
the Guarantors within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company, the Guarantors or any such director, officer or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in the Offering Memorandum or in any amendment or supplement
thereto, or (B) in any Blue Sky Application or (ii) the omission or alleged
omission to state in the Offering Memorandum, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading, but in each
case only to the extent that the 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
Company by or on behalf of that Initial Purchaser specifically for inclusion
therein, and shall reimburse the Company, the Guarantors and any such director,
officer or controlling person for any legal or other expenses reasonably
incurred by the Company, such Guarantor or any such director, officer or
controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in
23
addition to any liability which any Initial Purchaser may otherwise have to the
Company, the Guarantors or any such director, officer, employee or controlling
person.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation;
provided, however, any indemnified party shall have the right to employ
separate counsel in any such action and to participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of the
indemnified party unless (i) the employment thereof has been specifically
authorized by the indemnifying party in writing, (ii) such indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party and in the reasonable judgment of such
counsel it is advisable for such indemnified party to employ separate counsel
or (iii) the indemnifying party has failed to assume the defense of such action
and employ counsel reasonably satisfactory to the indemnified party, in which
case, if such indemnified party notifies the indemnifying party in writing that
it elects to employ separate counsel at the expense of the indemnifying party
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to one local
counsel) at any time for all such indemnified parties, which firm shall be
designated in writing by Xxxxxx Brothers Inc., if the indemnified parties under
this Section 8 consist of any Initial Purchaser or any of their respective
officers, employees or controlling persons, or by the Company, if the
indemnified parties under this Section consist of the Company, the Guarantors
or any of the Company's or the Guarantors' directors, officers, employees or
controlling persons. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding, or (ii) be liable for any settlement
of any such action effected without its written consent (which consent shall
not be unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment of
24
the plaintiff in any such action, the indemnifying party agrees to indemnify
and hold harmless any indemnified party from and against any loss or liability
by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Guarantors on the one hand and the Initial
Purchasers on the other from the offering of the Series A Notes and the Series
A Guarantees 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 and the Guarantors on the one hand and the
Initial Purchasers on the other with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Guarantors on the one hand and the
Initial Purchasers on the other with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Series A Notes purchased under this Agreement (before deducting expenses)
received by the Company and the Guarantors, on the one hand, and the total
discounts and commissions received by the Initial Purchasers with respect to
the Series A Notes and the Series A Guarantees purchased under this Agreement,
on the other hand, bear to the total gross proceeds from the offering of the
Series A Notes under this Agreement, in each case as set forth in the table on
the cover page of the Offering Memorandum. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company, the Guarantors or the Initial
Purchasers, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Guarantors and the Initial Purchasers agree that it would not
be just and equitable if contributions pursuant to this Section 8(d) were to be
determined by pro rata allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method of allocation which does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Section shall be deemed to include, for purposes of this Section 8(d), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(d), no Initial Purchaser shall
be required to contribute any amount in excess of the amount by which the total
price at which the Series A Notes purchased by it was resold to Eligible
Purchasers exceeds the amount of any damages which such Initial Purchaser has
otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Initial Purchasers'
obligations to contribute as provided in this Section 8(d) are several in
proportion to their respective underwriting obligations and not joint.
25
(e) The Initial Purchasers severally confirm and the Company and the
Guarantors acknowledge that the last paragraph on the cover page, the
stabilization legend on page iii and the last two paragraphs under the caption
"Plan of Distribution" constitute the only information concerning such Initial
Purchasers furnished in writing to the Company by or on behalf of the Initial
Purchasers specifically for inclusion in the Offering Memorandum.
9. Termination. The obligations of the Initial Purchasers hereunder
may be terminated by Xxxxxx Brothers Inc. by notice given to and received by
the Company prior to delivery of and payment for the Series A Notes and the
Series A Guarantees if, prior to that time, any of the events described in
Sections 7(k), 7(m) or 7(n), shall have occurred, the lenders under the Senior
Credit Agreement shall not have consented to the issuance and sale of the Notes
and the use of proceeds therefrom or if the Initial Purchasers shall decline to
purchase the Series A Notes for any reason permitted under this Agreement. The
obligations of the Company and the Guarantors hereunder may be terminated by
the Company by notice given to and received by Xxxxxx Brothers Inc. prior to
delivery of and payment for the Series A Notes and the Series A Guarantees if,
prior to that time, the lenders under the Senior Credit Agreement shall not
have consented to the issuance and sale of the Notes and the use of proceeds
therefrom.
10. Reimbursement of Initial Purchasers' Expenses. If the Company and
the Guarantors shall fail to tender the Series A Notes and the Series A
Guarantees for delivery to the Initial Purchasers by reason of any failure,
refusal or inability on the part of the Company and the Guarantors to perform
any agreement on its part to be performed, or because any other condition of
the Initial Purchasers' obligations hereunder required to be fulfilled by the
Company and the Guarantors is not fulfilled, the Company and the Guarantors
will reimburse the Initial Purchasers for all reasonable out-of-pocket expenses
(including fees and disbursements of counsel) incurred by the Initial
Purchasers in connection with this Agreement and the proposed purchase of the
Series A Notes and the Series A Guarantees, and upon demand the Company and the
Guarantors shall pay the full amount thereof to Xxxxxx Brothers Inc.
11. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent
by mail, telex or facsimile transmission to Xxxxxx Brothers Inc.,
Three World Financial Center, New York, New York 10285, Attention:
Syndicate Department (Fax: 000-000-0000), with a copy to Xxxxxx &
Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx
X. Xxxxxxxxx (Fax: 000-000-0000) and, in the case of any notice
pursuant to Section 8, to the Director of Litigation, Office of the
General Counsel, Xxxxxx Brothers Inc., Three World Xxxxxxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, XX 00000; and
(b) if to the Company and the Guarantors, shall be delivered
or sent by mail, telex or facsimile transmission to L-3 Communications
Corporation, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxxxxxx X. Xxxxxxx (Fax: 000-000-0000), with a copy to
Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxx Xxxxxx, Xx. (Fax: (000) 000-0000).
26
Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof. The Company shall be entitled to act and rely
upon any request, consent, notice or agreement given or made on behalf of the
Initial Purchasers by Xxxxxx Brothers Inc.
12. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchasers, the
Company, the Guarantors and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that (A) the representations, warranties, indemnities and agreements of
the Company and the Guarantors contained in this Agreement shall also be deemed
to be for the benefit of the person or persons, if any, who control any Initial
Purchaser within the meaning of Section 15 of the Securities Act and (B) the
indemnity agreement of the Initial Purchasers contained in Section 8(c) of this
Agreement shall be deemed to be for the benefit of directors of the Company and
the Guarantors and any person controlling the Company and the Guarantors within
the meaning of Section 15 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 12, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
13. Survival. The respective indemnities, representations, warranties
and agreements of the Company, the Guarantors and the Initial Purchasers
contained in this Agreement or made by or on behalf on them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Notes and the Guarantees and shall remain in full force and effect, regardless
of any investigation made by or on behalf of any of them or any person
controlling any of them.
14. Definition of the Terms "Business Day" and "Subsidiary." For
purposes of this Agreement, (a) "business day" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "subsidiary" has the meaning set forth in Rule 405 of the rules
and regulations of the Commission under the Securities Act.
15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF NEW YORK.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[Signature pages follow]
27
If the foregoing correctly sets forth the agreement among the Company,
the Guarantors and the Initial Purchasers, please indicate your acceptance in
the space provided for that purpose below.
Very truly yours,
L-3 Communications Corporation
By:
-----------------------------------------
Name:
Title:
Hygienetics Environmental Services, Inc.
By:
-----------------------------------------
Name:
Title:
X-0 Xxxxxxxxxxxxxx XXXX Systems, Inc.
By:
-----------------------------------------
Name:
Title:
Southern California Microwave, Inc.
By:
-----------------------------------------
Name:
Title:
L-3 Communications SPD Technologies, Inc.
By:
-----------------------------------------
Name:
Title:
28
L-3 Communications ESSCO, Inc.
By:
-----------------------------------------
Name:
Title:
Storm Control Systems, Inc.
By:
-----------------------------------------
Name:
Title:
DBS Microwave, Inc.
By:
-----------------------------------------
Name:
Title:
SPD Electrical Systems, Inc.
By:
-----------------------------------------
Name:
Title:
SPD Switchgear Inc.
By:
-----------------------------------------
Name:
Title:
Pac Ord Inc.
By:
-----------------------------------------
Name:
Title:
29
Xxxxxxxx Inc.
By:
-----------------------------------------
Name:
Title:
SPD Holdings, Inc.
By:
-----------------------------------------
Name:
Title:
Power Paragon, Inc.
By:
-----------------------------------------
Name:
Title:
30
Accepted:
Xxxxxx Brothers Inc.
NationsBanc Xxxxxxxxxx Securities LLC
By: Xxxxxx Brothers Inc.
By:
-----------------------------------
Authorized Representative
SCHEDULE 1
Principal
Initial Purchaser: Amount of Notes
------------------ ---------------
Xxxxxx Brothers Inc. $175,000,000
NationsBanc Xxxxxxxxxx Securities LLC. 25,000,000
------------
Total $200,000,000
============
32
