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AMERICAN ECO CORPORATION
AND
THE GUARANTORS NAMED ON THE SIGNATURE PAGE HERETO
$120,000,000
9 5/8% SERIES A SENIOR NOTES DUE 2008
PURCHASE AGREEMENT
May 14, 1998
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES INC.
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AMERICAN ECO CORPORATION
$120,000,000
9 5/8% SERIES A SENIOR NOTES DUE 2008
PURCHASE AGREEMENT
May 14, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES INC.
▇/▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇.
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Ladies & Gentlemen:
American Eco Corporation, an Ontario, Canada corporation
(the "Company"), proposes to issue and sell to ▇▇▇▇▇▇▇▇▇ &
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Company, Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Securities Inc. (collectively,
the "Initial Purchasers") $120,000,000 aggregate principal amount
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of its 9 5/8% Series A Senior Notes due 2008 (the "Series A
--------
Notes"), subject to the terms and conditions set forth herein.
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The Notes (as defined below) will be issued pursuant to an
indenture (the "Indenture"), to be dated the Closing Date (as
---------
defined below), among the Company, the Guarantors (as defined
below) and State Street Bank and Trust Company, as trustee (the
"Trustee"). The Notes will be fully and unconditionally
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guaranteed (the "Guarantees"), upon the terms and subject to the
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conditions of the Indenture, as to payment of principal,
interest, liquidated damages and premium, if any, jointly and
severally, by each of the subsidiaries listed on Exhibit A hereto
(each a "Guarantor" and collectively, the "Guarantors").
--------- ----------
Capitalized terms used herein and not otherwise defined shall
have the meanings assigned to such terms in the Indenture.
1. ISSUANCE OF SECURITIES. The Company proposes, upon the
----------------------
terms and subject to the conditions set forth herein, to issue
and sell to the Initial Purchasers an aggregate of $120,000,000
principal amount of Series A Notes. The Series A Notes and the
Series B Notes (as defined below) issuable in exchange therefor
are collectively referred to herein as the "Notes."
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Upon original issuance thereof, and until such time as the
same is no longer required under the applicable requirements of
the Securities Act of 1933, as amended (the "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 ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED
HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION
5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (1)(a) 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 NON-U.S. 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 UNDER THE SECURITIES
ACT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED
HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A)
ABOVE."
2. OFFERING. The Series A Notes will be offered and sold
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to the Initial Purchasers pursuant to an exemption from the
registration requirements under the Act. The Company has
prepared a preliminary offering memorandum, dated April 30, 1998
(the "Preliminary Offering Memorandum"), and a final offering
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memorandum, dated the date hereof (the "Offering Memorandum"),
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relating to the Company, the Guarantors and the Series A Notes.
The Initial Purchasers have advised the Company that the
Initial Purchasers will make offers (the "Exempt Resales") of the
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Series A Notes only upon the terms set forth in this Agreement
and the Offering Memorandum, as amended or supplemented, and
solely to (i) persons whom the Initial Purchasers reasonably
believe to be "qualified institutional buyers," as defined in
Rule 144A under the Act ("QIBs"), (ii) a limited number of
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persons who have represented to the Company and the Initial
Purchasers that they are institutional "Accredited Investors"
referred to in Rule 501(a)(1), (2), (3) or (7) under the Act
(each, an "Accredited Investor"), or (iii) to non-U.S. persons
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(as defined in Rule 902 under the Securities Act) upon the terms
and conditions set forth in Annex I hereof (such persons
specified in clauses (i), (ii) and (iii) being referred to herein
as the "Eligible Purchasers"). The Initial Purchasers will offer
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the Series A Notes to such Eligible Purchasers initially at a
price equal to 97.0% of the principal amount thereof. Such price
may be changed at any time without notice.
Holders (including subsequent transferees) of the Series A
Notes will have the registration rights set forth in the
registration rights agreement relating thereto (the "Registration
------------
Rights Agreement"), to be dated the Closing Date, for so long as
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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,
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(i) a registration statement under the Act (the "Exchange Offer
--------------
Registration Statement") relating to the 9 5/8% Series B Senior
----------------------
Notes due 2008 (the "Series B Notes") to be offered in exchange
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for the Series A Notes (the "Exchange Offer") and (ii) under
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certain circumstances, a shelf registration statement pursuant to
Rule 415 under the Act (the "Shelf Registration Statement")
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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 and to consummate the
Exchange Offer. This Agreement, the Notes, the Indenture, the
Registration Rights Agreement and the Guarantees are hereinafter
sometimes referred to collectively as the "Operative Documents."
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3. PURCHASE, SALE AND DELIVERY. (a) On the basis of the
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representations, warranties and covenants contained in this
Agreement, and subject to its terms and conditions, the Company
agrees to issue and sell to the Initial Purchasers, and the
Initial Purchasers agree to purchase from the Company,
$120,000,000 aggregate principal amount of Series A Notes. The
purchase price for the Series A Notes will be $970 per $1,000
principal amount of Series A Notes.
(b) Closing of the purchase, sale and delivery of the
Series A Notes shall take place at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇
L.L.P., ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or such other location
as may be mutually acceptable. Such delivery and payment shall
be made at 10:00 a.m., New York City time, on May 21, 1998 or at
such other time as shall be agreed upon by the Initial Purchasers
and the Company. The time and date of such delivery and payment
are herein called the "Closing Date."
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(c) Except as set forth in the next paragraph, one Series A
Note in definitive global form, registered in the name of Cede &
Co., as nominee of The Depository Trust Company ("DTC") (the
---
"Global Note"), shall be delivered by the Company to the Initial
-----------
Purchasers, against payment by the Initial Purchasers of the
purchase price therefor, by wire transfer, in same-day funds, to
the Company's account, by causing DTC to credit the principal
amount of the Global Note to the account of ▇▇▇▇▇▇▇▇▇ & Company,
Inc. at DTC.
Such Series A Notes, if any, as ▇▇▇▇▇▇▇▇▇ & Company, Inc.
may request upon at least 48 hours' prior notice to the Company
(such request to include the authorized denominations and the
names in which they are to be registered), shall be delivered in
definitive certificated form, by or on behalf of the Company to
▇▇▇▇▇▇▇▇▇ & Company, Inc. against payment by the Initial
Purchasers for the purchase price therefor, by wire transfer in
same-day funds to the Company's account. The Company will cause
the certificates representing such definitive certificated
Series A Notes to be made available to the Initial Purchasers, at
▇▇▇▇▇▇▇▇▇ & Company, Inc.'s offices at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at least 24 hours preceding the Closing Date.
4. AGREEMENTS OF THE COMPANY AND THE GUARANTORS. The
--------------------------------------------
Company and the Guarantors, jointly and severally, covenant and
agree with the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if
requested by the Initial Purchasers, confirm such advice in
writing, (i) of the issuance by any state securities
commission of any stop order suspending the qualification or
exemption from qualification of any Notes for offering or
sale in any jurisdiction, or the initiation of any
proceeding for such purpose by any state securities
commission or other regulatory authority or (ii) of the
happening of any event that makes any statement of a
material fact made 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 therein,
in the light of the circumstances under which they are made,
not misleading. The Company and the Guarantors shall use
their reasonable best efforts to prevent the issuance of any
stop order or order suspending the qualification or exemp-
tion of any Notes under any state securities or Blue Sky
laws and, if at any time any state securities commission or
other regulatory authority shall issue an order suspending
the qualification or exemption of any Notes under any state
securities or Blue Sky laws, the Company and the Guarantors
shall use their reasonable best efforts to obtain the
withdrawal or lifting of such order at the earliest possible
time.
(b) To furnish the Initial Purchasers and those
persons identified by the Initial Purchasers, without
charge, as many copies of the Preliminary Offering
Memorandum and the Offering Memorandum, and any amendments
or supplements thereto, as the Initial Purchasers may
reasonably request. The Company and the Guarantors consent
to the use of the Preliminary Offering Memorandum and the
Offering Memorandum, and any amendments and supplements
thereto, by the Initial Purchasers in connection with Exempt
Resales.
(c) Not to amend or supplement the Preliminary
Offering Memorandum or the Offering Memorandum prior to the
Closing Date unless the Initial Purchasers shall previously
have been advised thereof and shall not have objected
thereto within a reasonable time after being furnished a
copy thereof.
(d) Not to file any document pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange
--------
Act"), prior to the termination of the offering of the Notes
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if such document would be incorporated by reference in the
Offering Memorandum unless a copy thereof shall have been
provided to the Initial Purchasers and counsel for the
Initial Purchasers within a reasonable period of time prior
to the filing thereof and the Initial Purchasers shall not
have objected thereto in good faith.
(e) If, after the date hereof and prior to
consummation of any Exempt Resale, any event shall occur as
a result of which, in the judgment of the Company and the
Guarantors, it becomes necessary or advisable to amend or
supplement the Preliminary Offering Memorandum or Offering
Memorandum in order to make the statements therein, in the
light of the circumstances when such Offering Memorandum is
delivered to an Eligible Purchaser, not misleading, or if it
is necessary or advisable to amend or supplement the
Preliminary Offering Memorandum or Offering Memorandum to
comply with applicable law, (i) to notify the Initial
Purchasers and (ii) promptly to prepare, at the Company's
expense, an appropriate amendment or supplement to such
Preliminary Offering Memorandum or Offering Memorandum so
that the statements therein as so amended or supplemented
will not, in the light of the circumstances when it is so
delivered, be misleading, or so that such Preliminary
Offering Memorandum or Offering Memorandum will comply with
applicable law.
(f) To cooperate with the Initial Purchasers and
counsel for the Initial Purchasers in connection with the
qualification or registration of the Series A Notes under
the securities or Blue Sky laws of such jurisdictions of the
United States as the Initial Purchasers may reasonably
request and to continue such qualification in effect so long
as required for the Exempt Resales; provided, however, that
neither the Company nor any Guarantor shall be required in
connection therewith to register or qualify as a foreign
corporation where it is not now so qualified or to take any
action that would subject it to service of process in suits
or taxation in each case, other than as to matters and
transactions relating to Exempt Resales, in any jurisdiction
where it is not now so subject.
(g) Whether or not the transactions contemplated by
this Agreement are consummated or this Agreement becomes
effective or is terminated, to pay all costs, expenses, fees
and taxes incident to the performance of the obligations of
the Company and the Guarantors hereunder, including in
connection with: (i) the preparation, printing, filing and
distribution of the Preliminary Offering Memorandum and the
Offering Memorandum and all amendments and supplements
thereto required pursuant hereto and delivery of all other
agreements, memoranda, correspondence and all other
documents prepared and delivered in connection herewith and
with the Exempt Resales, (ii) the issuance, transfer and
delivery by the Company of the Notes and the Guarantors of
the Guarantees to the Initial Purchasers, (iii) the
qualification or registration of the Notes for offer and
sale under the securities or Blue Sky laws of the several
states (including, without limitation, Blue Sky filing fees,
the cost of printing and mailing a preliminary and final
Blue Sky Memorandum and the reasonable fees and
disbursements of counsel for the Initial Purchasers relating
thereto), (iv) furnishing such copies of the Preliminary
Offering Memorandum and the Offering Memorandum, and all
amendments and supplements thereto, as may be requested for
use in connection with Exempt Resales, (v) the preparation
of certificates for the Notes (including, without
limitation, printing and engraving thereof), (vi) the fees,
disbursements and expenses of the Company's and the
Guarantors' counsel and accountants, (vii) all expenses and
listing fees in connection with the application for
quotation of the Notes in the National Association of
Securities Dealers, Inc. ("NASD") Private Offering, Resales
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and Trading through Automated Linkages ("PORTAL") market,
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(viii) all fees and expenses (including fees and expenses of
counsel) of the Company and the Guarantors in connection
with the approval of the Notes by DTC for "book-entry"
transfer, (ix) rating the Notes by rating agencies, (x) the
reasonable fees and expenses of the Trustee and its counsel,
(xi) the performance by the Company and the Guarantors of
their other obligations under this Agreement and the other
Operative Documents and (xii) "roadshow" travel and other
expenses incurred by the Company in connection with the
marketing and sale of the Notes.
(h) To use the proceeds from the sale of the Series A
Notes in the manner described in the Offering Memorandum
under the caption "Use of Proceeds."
(i) Not to voluntarily claim, and to resist actively
any attempts to claim, the benefit of any usury laws against
the holders of any Notes.
(j) Not to sell, offer for sale or solicit offers to
buy or otherwise negotiate in respect of any security (as
defined in the Act) that would be integrated with the sale
of the Series A Notes in a manner that would require the
registration under the Act of the sale to the Initial
Purchasers or the Eligible Purchasers of the Series A Notes
or to take any other action that would result in the Exempt
Resales not being exempt from registration under the Act.
(k) For so long as any of the Notes remain outstanding
and during any period in which neither the Company nor any
Guarantor is subject to Section 13 or 15(d) of the Exchange
Act to make available upon request to any holder or
beneficial owner of Series A Notes in connection with any
sale thereof and any prospective Purchasers of such Series A
Notes from such holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act.
(l) [Intentionally omitted.]
(m) To comply with all of their respective agreements
set forth in this Agreement, the Indenture, the other
Operative Documents to which any of them is a party and all
agreements set forth in the representation letters of the
Company to DTC relating to the approval of the Series A
Notes by DTC for "book-entry" transfer.
(n) To cooperate with the Initial Purchasers to effect
the inclusion of the Notes in PORTAL and to obtain approval
of the Series A Notes by DTC for "book-entry" transfer.
(o) For so long as any of the Notes remain
outstanding, to deliver without charge to the Initial
Purchasers, as they may reasonably request, promptly upon
their becoming available, copies of (i) all reports or other
information that the Company or any Guarantor shall mail or
otherwise make available to its security holders and (ii)
all reports, financial statements and proxy or information
statements filed by the Company or any Guarantor with the
Commission or any national securities exchange.
(p) Not to take, directly or indirectly, any action
designed to, or that might reasonably be expected to, cause
or result in stabilization or manipulation of the price of
any security of the Company or any Guarantor to facilitate
the sale or resale of the Notes. Except as permitted by the
Act, neither the Company nor any Guarantor shall distribute
any (i) preliminary offering memorandum, including, without
limitation, the Preliminary Offering Memorandum, (ii)
offering memorandum, including, without limitation, the
Offering Memorandum or (iii) other offering material in
connection with the offering and sale of the Notes.
(q) Prior to the Closing Date, not to permit any
material change in the capital stock of the Company or in
the consolidated short-term debt or long-term debt of the
Company and its subsidiaries otherwise than as set forth or
contemplated in the Offering Memorandum.
(r) Not to, nor to cause or permit any of its
affiliates (as defined in Rule 501(b) under the Act) to,
solicit any offer to buy or offer or sell the Series A Notes
or the Series B Notes by means of any form of general
solicitation or general advertising (as such terms are used
in Regulation D under the Act), or in any manner involving a
public offering within the meaning of Section 4(2) of the
Act prior to the effectiveness of a registration statement
with respect to the Series A Notes or the Series B Notes, as
applicable.
5. REPRESENTATIONS AND WARRANTIES. (a) The Company and
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the Guarantors, jointly and severally, represent and warrant to
the Initial Purchasers that:
(i) The Preliminary Offering Memorandum and the
Offering Memorandum have been prepared in connection with
the Exempt Resales. The Preliminary Offering Memorandum and
the Offering Memorandum do not, and any supplement or
amendment to them will not, contain any untrue statement of
a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, except that the
representations and warranties contained in this paragraph
shall not apply to statements in or omissions from the
Preliminary Offering Memorandum and the Offering Memorandum
(or any supplement or amendment thereto) made in reliance
upon and in conformity with information relating to the
Initial Purchasers furnished to the Company in writing by
the Initial Purchasers expressly for use therein.
(ii) The Company and each Guarantor (A) has been
duly organized and is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation or organization, (B) has all requisite
corporate power and authority to carry on its business as it
is currently being conducted and as described in the
Offering Memorandum and to own, lease and operate its
properties, and (C) is duly qualified and in good standing
as a foreign corporation, authorized to do business in each
jurisdiction in which the nature of its business or its
ownership or leasing of property requires such
qualification, except where the failure to be so qualified
could not reasonably be expected to (x) result, individually
or in the aggregate, in a material adverse effect on the
properties, business, prospects, results of operations or
condition (financial or otherwise) of the Company and its
subsidiaries, taken as a whole, (y) interfere with or
adversely affect the issuance of the Notes pursuant hereto
or (z) in any manner draw into question the validity of this
Agreement or any other Operative Document or the
transactions described in the Offering Memorandum under the
caption "Use of Proceeds" (any of the events set forth in
clauses (x), (y) or (z), a "Material Adverse Effect").
-----------------------
(iii) The Company is not a "foreign private issuer"
as that term is defined in Rule 405 of the Act.
(iv) The Company has an authorized capitalization
as set forth under "Capitalization" in the Offering
Memorandum, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued
and are fully paid and non-assessable; all of the issued
shares of capital stock of each Guarantor have been duly and
validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities
or claims other than those arising under the Credit
Facilities (as defined in the Offering Memorandum).
(v) Except as disclosed in the Offering Memorandum,
there are not currently any outstanding subscriptions,
rights, warrants, calls, commitments of sale or options to
acquire, or instruments convertible into or exchangeable
for, any capital stock or other equity interest of the
Company or any of the Guarantors.
(vi) When the Series A Notes and the Guarantees
are issued and delivered pursuant to this Agreement, neither
the Series A Notes nor the Guarantees will be of the same
class (within the meaning of Rule 144A under the Act) as
securities of the Company or any Guarantor that are listed
on a national securities exchange registered under Section 6
of the Exchange Act or that are quoted in a United States
automated inter-dealer quotation system.
(vii) Each of the Company and the Guarantors has
all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement and
each of the other Operative Documents to which it is a party
and to consummate the transactions contemplated hereby and
thereby, including, without limitation, the corporate power
and authority to issue, sell and deliver the Notes and to
issue and deliver the Guarantees as provided herein and
therein.
(viii) This Agreement has been duly and validly
authorized, executed and delivered by each of the Company
and the Guarantors.
(ix) The Indenture has been duly and validly
authorized by each of the Company and the Guarantors and,
when duly executed and delivered by each of the Company and
the Guarantors, will be the legal, valid and binding
obligation of each of the Company and the Guarantors,
enforceable against each of them in accordance with its
terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar laws
affecting the rights of creditors generally and subject to
general principles of equity. The Indenture conforms in all
material respects to the description thereof in the Offering
Memorandum.
(x) The Registration Rights Agreement has been duly
and validly authorized by each of the Company and the
Guarantors and, when duly executed and delivered by each of
the Company and the Guarantors, will be the legal, valid and
binding obligation of each of the Company and the
Guarantors, enforceable against each of them in accordance
with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or similar
laws affecting the rights of creditors generally and subject
to general principles of equity and provided that rights to
indemnification and contribution thereunder may be limited
by federal or state securities laws or public policy
relating thereto. The Registration Rights Agreement
conforms in all material respects to the description thereof
in the Offering Memorandum.
(xi) The Series A Notes have been duly and validly
authorized by the Company for issuance and sale to the
Initial Purchasers pursuant to this Agreement and, when
issued and authenticated in accordance with the terms of the
Indenture and delivered against payment therefor in
accordance with the terms hereof and thereof, will be the
legal, valid and binding obligations of the Company,
enforceable against it in accordance with their terms and
entitled to the benefits of the Indenture, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of
equity. The Series A Notes conform in all material respects
to the description thereof in the Offering Memorandum.
(xii) The Guarantees of the Series A Notes have
been duly and validly authorized by each of the Guarantors
and, when executed and delivered in accordance with the
terms of the Indenture and when the Series A Notes have been
issued and authenticated in accordance with the terms of the
Indenture and delivered against payment therefor in
accordance with the terms hereof and thereof, will be the
legal, valid and binding obligations of each of the
Guarantors, enforceable against each of them in accordance
with their terms and entitled to the benefits of the
Indenture, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar laws
affecting the rights of creditors generally and subject to
general principles of equity. The Guarantees of the Series
A Notes conform in all material respects to the description
thereof in the Offering Memorandum.
(xiii) Neither the Company nor any of the Guarantors
is (A) in violation of its charter or bylaws, (B) in default
in the performance of any bond, debenture, note, indenture,
mortgage, deed of trust or other agreement or instrument to
which it is a party or by which it is bound or to which any
of its properties is subject, or (C) in violation of any
local, state, federal or foreign law, statute, ordinance,
rule, regulation, requirement, judgment or court decree
(including, without limitation, environmental laws,
statutes, ordinances, rules, regulations, judgments or court
decrees) applicable to it or any of its assets or properties
(whether owned or leased), except, in the case of clause (B)
or (C), where such event could not reasonably be expected to
have a Material Adverse Effect. To the best knowledge of
the Company and the Guarantors, there exists no condition
that, with notice, the passage of time or otherwise, would
constitute a default under any such document or instrument,
which default could reasonably be expected to have a
Material Adverse Effect.
(xiv) None of (A) the execution, delivery or
performance by the Company or any of the Guarantors of this
Agreement or any of the other Operative Documents to which
it is a party, (B) the issuance and sale of the Notes or the
Guarantees or (C) consummation of the transactions described
in the Offering Memorandum under the caption "Use of
Proceeds," violates, conflicts with or constitutes a breach
of any of the terms or provisions of, or a default under (or
an event that with notice or the lapse of time, or both,
would constitute a default), or result in the imposition of
a lien or encumbrance on any properties of the Company or
any of the Guarantors, or an acceleration of any
indebtedness of the Company or any of the Guarantors
pursuant to, (1) the charter or bylaws (or comparable
constituent documents) of the Company or any of the
Guarantors, (2) any bond, debenture, note, indenture,
mortgage, deed of trust or other agreement or instrument to
which the Company or any of the Guarantors is a party or by
which any of them or their property is or may be bound, (3)
any statute, rule or regulation (excluding any securities
law statute, rule or regulation) applicable to the Company
or any of the Guarantors or any of their assets or
properties or (4) any judgment, order or decree of any court
or governmental agency or authority having jurisdiction over
the Company or any of the Guarantors or any of their assets
or properties, except, in the case of clause (2), (3) or
(4), where such event could not reasonably be expected to
have a Material Adverse Effect. No consent, approval,
authorization or order of, or filing, registration,
qualification, license or permit of or with, (A) any court
or governmental agency, body or administrative agency or (B)
any other person is required for (1) the execution, delivery
and performance by the Company or any of the Guarantors of
this Agreement or any of the other Operative Documents to
which it is a party, (2) the issuance and sale of the Notes
or the Guarantees or (3) consummation of the transactions
described in the Offering Memorandum under the caption "Use
of Proceeds," except such as have been obtained and made
(or, in the case of the Registration Rights Agreement, will
be obtained and made) under the Act, the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), and state
-------------------
securities or Blue Sky laws and regulations, or such as may
be required by the NASD.
(xv) Other than as set forth in the Offering
Memorandum, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely
to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse
Effect; and, to the best of the Company's and the
Guarantors' knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others.
(xvi) Each of the Company and its subsidiaries
owns, possesses or has obtained all governmental licenses,
permits, certificates, consents, orders, approvals and other
authorizations (the "Governmental Authorizations") necessary
---------------------------
to own or lease, as the case may be, and to operate its
properties and to carry on its business as presently
conducted, except where the failure to own, possess or
obtain such Government Authorizations would not, in the
aggregate, have a Material Adverse Effect, and, except as
disclosed in the Offering Memorandum, neither the Company
nor any subsidiary has received any notice of proceedings
relating to revocation or modification of any such licenses,
permits, certificates, consents, orders, approvals or
authorizations which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would
have a Material Adverse Effect.
(xvii) Each of the Company and its subsidiaries
(i) is in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to
the protection of human health and safety, the environment
or hazardous or toxic substances or waste, pollutants or
contaminants ("Environmental Laws"), (ii) has received all
------------------
permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its business and
(iii) is in compliance with all terms and conditions of any
such permit, license or approval, except for such
noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits,
licenses or approvals that would not, singly or in the
aggregate, have a Material Adverse Effect.
(xviii) Neither the Company nor any of the Guarantors
is a party to any union or collective bargaining agreement,
and there is no significant strike, labor dispute, slowdown
or stoppage pending against the Company or any of the
Guarantors nor, to the knowledge of the Company and the
Guarantors, threatened against the Company or any of the
Guarantors, except, in each case, as is disclosed in the
Offering Memorandum or as could not reasonably be expected
to have a Material Adverse Effect.
(xix) The Company and each of the Guarantors has
(i) good and indefeasible title to all real property owned
by it to the extent necessary to carry on its business and
(ii) good and valid title to all personal property owned by
it, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Offering
Memorandum or such as do not materially affect the value of
such property and do not interfere with the use made and
proposed to be made of such property by the Company and the
Guarantors, considered as one enterprise; the Company and
each of the Guarantors enjoys peaceful and undisturbed
possession under all leases of real estate and personal
property used in the conduct of their business.
(xx) The Company and each of the Guarantors have
(i) filed all federal, state and local and foreign tax
returns which are required to be filed through the date
hereof, and all such tax returns are true, complete and
accurate in all material respects, or (ii) received valid
extensions thereof and have paid all taxes shown on such
returns and all assessments received by them except where,
in the case of state and local and foreign tax returns, the
failure to file in clause (i), or extend the due date of or
pay the same in clause (ii), in the aggregate, could not
reasonably be expected to have a Material Adverse Effect;
and the Company has no knowledge of any tax deficiency which
has been or might be asserted against the Company or any of
its subsidiaries which could reasonably be expected to have
a Material Adverse Effect.
(xxi) None of the Company, the Guarantors or any of
the Company's other subsidiaries is (i) an "investment
company" or (ii) a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of
1940, as amended (the "Investment Company Act").
----------------------
(xxii) The Company and each of the Guarantors
maintains a system of internal accounting controls
sufficient to provide reasonable assurance that:
(A) transactions are executed in accordance with
management's general or specific authorizations;
(B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (C) access to assets is permitted
only in accordance with management's general or specific
authorization; and (D) the recorded accountability for
assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to
any material discrepancies.
(xxiii) None of the Company, the Guarantors or any of
the Company's other subsidiaries has (A) taken, directly or
indirectly, any action designed to, or that might reasonably
be expected to, cause or result in stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Notes or (B) since the
date of the Preliminary Offering Memorandum (1) sold, bid
for, purchased or paid any person any compensation for
soliciting purchases of, the Notes or (2) paid or agreed to
pay to any person any compensation for soliciting another to
purchase any other securities of the Company, any of the
Guarantors or any of the Company's other subsidiaries.
(xxiv) Subject to compliance by the Initial Purchasers
with the representations and warranties set forth in Section
5(b)(ii) and the procedures set forth in Annex I hereof, it
is not necessary in connection with the offer, sale and
delivery of the Series A Notes to the Initial Purchasers and
to each Eligible Purchaser, in the manner contemplated by
this Agreement and the Offering Memorandum, to register the
Series A Notes under the Act or the Trust Indenture Act. No
securities of the same class as the Notes or the Guarantees
have been issued and sold by the Company, any of the
Guarantors or any of the Company's other subsidiaries within
the six-month period immediately prior to the date hereof.
(xxv) Neither the Company, any of the Guarantors,
nor any person acting on their behalf (other than the
Initial Purchasers, as to whom the Company and the
Guarantors make no representation or warranty) has offered
or sold the Series A Notes by means of any general
solicitation or general advertising within the meaning of
Rule 502(c) under the Act or, with respect to Series A Notes
sold outside the United States to non-U.S. persons, by means
of any directed selling efforts within the meaning of
Rule 902 under the Act and the Company, its affiliates and
any person acting on their behalf (other than the Initial
Purchasers, as to whom the Company and the Guarantors make
no representation or warranty) have complied with and will
implement the "offering restrictions" within the meaning of
such Rule 902.
(xxvi) Each of the Preliminary Offering Memorandum, as
of its date, and the Offering Memorandum, as of its date and
as of the Closing Date, and each amendment or supplement
thereto, as of its date and as of the Closing Date, contains
the information specified in, and meets the requirements of,
Rule 144A(d)(4) under the Act.
(xxvii) None of the execution, delivery and performance
of this Agreement, the issuance and sale of the Notes and
the Guarantees, the application of the proceeds from the
issuance and sale of the Notes and the consummation of the
transactions contemplated by the Company or the Guarantors
as set forth in the Offering Memorandum, will violate
Regulations G, T, U or X promulgated by the Board of
Governors of the Federal Reserve System or analogous foreign
laws and regulations.
(xxviii) The accountants who have certified the
financial statements included as part of the Offering
Memorandum are independent accountants. The historical
consolidated financial statements, together with related
schedules and notes thereto, of the Company comply as to
form in all material respects with the requirements
applicable to registration statements on Form S-1 under the
Act and present fairly in all material respects the
consolidated financial position, results of operations and
changes in stockholders' investment and cash flows of the
Company at the respective dates or for the periods
indicated. Such financial statements have been prepared in
accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods
presented unless otherwise stated therein. The other
financial and statistical information and data included in
the Offering Memorandum, historical and pro forma, fairly
present in all material respects the information they
purport to present and are prepared on a basis consistent
with the financial statements included in the Offering
Memorandum and the books and records of the Company, the
Guarantors and the Company's other subsidiaries, as
applicable. The "as adjusted" financial information
included in the Offering Memorandum that gives effect to the
issuance of the Notes, the application of the net proceeds
therefrom and the other transactions and events specified
therein has been properly compiled on the basis of the
assumptions set forth with respect thereto.
(xxix) There are no contracts, indentures, mortgages,
loan agreements, notes, leases or other agreements or
instruments or other documents (collectively, "Documents")
---------
required to be described or referred to in a Registration
Statement on Form S-1 other than those described or referred
to in the Offering Memorandum; all descriptions of Documents
in the Offering Memorandum are accurate in all material
respects and present fairly the information described
therein.
(xxx) Neither the Company nor any of the Guarantors
intends to, nor does it believe that it will, incur debts
beyond its ability to pay such debts as they mature. The
present fair saleable value of the assets of each of the
Company and the Guarantors exceeds the amount that will be
required to be paid on or in respect of its existing debts
and other liabilities (including contingent liabilities) as
they become absolute and matured. The assets of each of the
Company and the Guarantors do not constitute unreasonably
small capital to carry out its business as conducted or as
proposed to be conducted. Upon the issuance of the Notes
and the Guarantees, the present fair saleable value of the
assets of each of the Company and the Guarantors will exceed
the amount that will be required to be paid on or in respect
of its existing debts and other liabilities (including
contingent liabilities) as they become absolute and matured.
Upon the issuance of the Notes and the Guarantees, the
assets of each of the Company and the Guarantors will not
constitute unreasonably small capital to carry out its
businesses as now conducted, including its capital needs,
taking into account the projected capital requirements and
capital availability.
The Company and the Guarantors each acknowledge that the
Initial Purchasers and, for purposes of the opinions to be
delivered to the Initial Purchasers pursuant to Section 8 hereof,
counsel for the Company and the Guarantors and counsel for the
Initial Purchasers, will rely upon the accuracy and truth of the
foregoing representations and hereby consent to such reliance.
(b) Each Initial Purchaser represents, warrants and
covenants to the Company and the Guarantors and agrees that:
(i) Such Initial Purchaser is a QIB, 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.
(ii) Such Initial Purchaser (A) is not acquiring the
Series A Notes with a view to any distribution thereof that
would violate the Act or the securities laws of any state of
the United States or any other applicable jurisdiction and
(B) will be reoffering and reselling the Series A Notes only
to (1) persons that it reasonably believes are QIBs in
reliance on the exemption from the registration requirements
of the Act provided by Rule 144A, (2) institutions that it
reasonably believes are Accredited Investors in a private
placement exempt from the registration requirements of the
Act, or (3) non-U.S. persons outside the United States in
reliance upon Regulation S under the Act.
(iii) No form of general solicitation or general
advertising (as such terms are defined in Rule 502(c) under
the Act) has been or will be used by such Initial Purchaser
or any of its representatives in connection with the offer
and sale of any of the Series A Notes, including, but not
limited to, articles, notices or other communications
published in any newspaper, magazine, or similar medium or
broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general
solicitation or general advertising.
(iv) Neither the Initial Purchasers, nor any person
acting on their behalf, has offered or sold the Series A
Notes by means of any general solicitation or general
advertising within the meaning of Rule 502(c) under the Act
or, with respect to Series A Notes sold outside the United
States to non-U.S. persons, by means of any directed selling
efforts within the meaning of Rule 902 under the Act and the
Initial Purchasers and any person acting on their behalf
have complied with and will implement the "offering
restrictions" within the meaning of such Rule 902.
(v) In connection with the Exempt Resales, it will
offer to sell the Series A Notes only to, and will solicit
offers to buy the Series A Notes only from, persons who in
purchasing such Series A Notes will be deemed to have
represented and agreed (1) if such person is a QIB, that it
is purchasing the Series A Notes for its own account or an
account with respect to which it exercises sole investment
discretion and that its or such accounts are QIBs, (2) if
such person is an Accredited Investor, that such person has
made the representations contained in, and executed and
returned to such Initial Purchaser a certificate in the form
of, Annex A attached to the Offering Memorandum, (3) that
such Series A Notes will not have been registered under the
Act and may be resold, pledged or otherwise transferred only
(A) (I) to a person who the seller reasonably believes is a
QIB, (II) in a transaction meeting the requirements of Rule
144 under the Act, (III) outside the United States to a
foreign person in a transaction meeting the requirements of
Rule 904 under the Act or (IV) in accordance with another
exemption from the registration requirements of the Act (and
based upon an opinion of counsel if the Company so
requests), (B) to the Company or (C) pursuant to an
effective registration statement under the Act, in each
case, in accordance with any applicable securities laws of
any State of the United States or any other applicable
jurisdiction, and (4) that the holder will, and each
subsequent holder is required to, notify any purchasers from
it of the security evidenced thereby of the resale
restrictions set forth in (3) above.
Each Initial Purchaser acknowledges that the Company and the
Guarantors and, for purposes of the opinions to be delivered to
such Initial Purchaser pursuant to Section 8 hereof, counsel for
the Company and the Guarantors and counsel for the Initial
Purchasers, will rely upon the accuracy and truth of the
foregoing representations and hereby consents to such reliance.
6. INDEMNIFICATION. (a) The Company and the Guarantors,
---------------
jointly and severally, agree to indemnify and hold harmless (i)
the Initial Purchasers, (ii) each person, if any, who controls
the Initial Purchasers within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act and (iii) the respective
officers, directors, partners, employees, representatives and
agents of the Initial Purchasers or any controlling person to the
fullest extent lawful, from and against any and all losses,
liabilities, claims, damages and expenses whatsoever (including
but not limited to reasonable attorneys' fees and any and all
expenses whatsoever reasonably incurred in investigating,
preparing or defending against any investigation or litigation,
commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under
the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum or the Offering Memorandum, or in
any supplement thereto or amendment thereof, or arise out of or
are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however,
that the Company and the Guarantors will not be liable in any
such case to the extent, but only to the extent, that any such
loss, liability, claim, damage or expense arises out of or is
based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company
by the Initial Purchasers expressly for use therein. This
indemnity agreement will be in addition to any liability which
the Company and the Guarantors may otherwise have, including
under this Agreement.
(b) Each Initial Purchaser agrees to indemnify and hold
harmless (i) the Company and each of the Guarantors, (ii) each
person, if any, who controls the Company or any Guarantor within
the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act and (iii) the respective officers, directors,
partners, employees, representatives and agents of the Company,
the Guarantors or any controlling person to the fullest extent
lawful, from and against any losses, liabilities, claims, damages
and expenses whatsoever (including but not limited to attorneys'
fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any investigation
or litigation, commenced or threatened, or any claim whatsoever
and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or otherwise,
insofar as such losses, liabilities, claims, damages or expenses
(or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Offering Memorandum or the
Offering Memorandum, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent,
that any such loss, liability, claim, damage or expense arises
out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made therein in
reliance upon and in conformity with written information
furnished to the Company by such Initial Purchasers expressly for
use therein; provided, however, that in no case shall either
Initial Purchaser be liable or responsible for any amount in
excess of the discounts received by such Initial Purchaser, as
set forth on the cover page of the Offering Memorandum. This
indemnity will be in addition to any liability which each Initial
Purchaser may otherwise have, including under this Agreement.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to
be sought in writing of the commencement thereof (but the failure
so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 6 or otherwise
except to the extent that it has been prejudiced in any material
respect by such failure). In case any such action is brought
against any indemnified party, and it notifies an indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent it may elect
by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party,
to assume and control the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right
to employ its or their own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such
counsel shall have been authorized in writing by the indemnifying
parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take
charge of the defense of such action within a reasonable time
after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that
there may be defenses available to it which are different from or
additional to those available to one or all of the indemnifying
parties (in which case the indemnifying party shall not have the
right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees
and expenses of counsel shall be borne by the indemnifying
parties; provided, however, that the indemnifying party under
subsection (a) or (b) above shall only be liable for the legal
expenses of one counsel (in addition to any local counsel) for
all indemnified parties. Anything in this subsection to the
contrary notwithstanding, an indemnifying party shall not be
liable for any settlement of any claim or action effected without
its prior written consent, provided that such consent was not
unreasonably withheld.
7. CONTRIBUTION. In order to provide for contribution in
------------
circumstances in which the indemnification provided for in
Section 6 is for any reason held to be unavailable or is
insufficient to hold harmless a party indemnified thereunder, the
Company and the Guarantors, on the one hand, and each Initial
Purchaser, on the other hand, shall contribute to the aggregate
losses, claims, damages, liabilities and expenses of the nature
contemplated by such indemnification provision (including any
investigation, legal and other expenses incurred in connection
with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the
case of losses, claims, damages, liabilities and expenses
suffered by the Company and the Guarantors, any contribution
received by the Company and the Guarantors from persons, other
than the Initial Purchasers, who may also be liable for
contribution, including persons who control the Company and the
Guarantors within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act) to which the Company, the Guarantors
and each Initial Purchaser may be subject, in such proportion as
is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on one hand, and each Initial
Purchaser, on the other hand, from the offering of the Series A
Notes or, if such allocation is not permitted by applicable law
or indemnification is not available as a result of the
indemnifying party not having received notice as provided in
Section 6, in such proportion as is appropriate to reflect not
only the relative benefits referred to above but also the
relative fault of the Company and the Guarantors, on one hand,
and each Initial Purchaser, on the other hand, in connection with
the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits
received by the Company and the Guarantors, on one hand, and each
Initial Purchaser, on the other hand, shall be deemed to be in
the same proportion as (i) the total proceeds from the offering
of Series A Notes (net of discounts but before deducting
expenses) received by the Company and the Guarantors and (ii) the
discounts received by each Initial Purchaser, respectively, in
each case as set forth in the table on the cover page of the
Offering Memorandum. The relative fault of the Company and the
Guarantors, on one hand, and of each Initial Purchaser, on the
other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, the
Guarantors or each Initial Purchaser and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the
Guarantors and each Initial Purchaser agrees that it would not be
just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable
considerations referred to above. Notwithstanding the provisions
of this Section 7, (i) in no case shall an Initial Purchaser be
required to contribute any amount in excess of the amount by
which the discounts applicable to the Series A Notes purchased by
such Initial Purchaser pursuant to this Agreement exceeds the
amount of any damages which such Initial Purchaser has otherwise
been required to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission and (ii) no person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, (A) each
person, if any, who controls each Initial Purchaser within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act and (B) the respective officers, directors, partners,
employees, representatives and agents of each Initial Purchaser
or any controlling person shall have the same rights to
contribution as the Initial Purchaser with which they are
associated, and each person, if any, who controls the Company and
the Guarantors within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act shall have the same rights to
contribution as the Company and the Guarantors, subject in each
case to clauses (i) and (ii) in the preceding sentence of this
Section 7. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under
this Section 7, notify such party or parties from whom
contribution may be sought, but the failure to so notify such
party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may
have under this Section 7 or otherwise, except to the extent it
has been prejudiced in any material respect by such failure. No
party shall be liable for contribution with respect to any action
or claim settled without its prior written consent, provided that
such written consent was not unreasonably withheld.
8. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The
---------------------------------------------
obligation of the Initial Purchasers to purchase and pay for the
Series A Notes, as provided herein, shall be subject to the
satisfaction of the following conditions:
(a) All of the representations and warranties of the
Company and the Guarantors contained in this Agreement shall
be true and correct on the date hereof and on the Closing
Date with the same force and effect as if made on and as of
the date hereof and the Closing Date, respectively. Each of
the Company and the Guarantors shall have performed or
complied with all of the agreements herein contained and
required to be performed or complied with by it at or prior
to the Closing Date.
(b) The Offering Memorandum shall have been printed
and copies distributed to the Initial Purchasers not later
than 10:00 a.m., New York City time, on the day following
the date of this Agreement or at such later date and time as
to which the Initial Purchasers may agree, and no stop order
suspending the qualification or exemption from qualification
of the Series A Notes in any jurisdiction referred to in
Section 4(f) shall have been issued and no proceeding for
that purpose shall have been commenced or shall be pending
or threatened.
(c) No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted
or issued by any governmental agency which would, as of the
Closing Date, prevent the issuance of the Series A Notes; no
action, suit or proceeding shall have been commenced and be
pending against or affecting or, to the best knowledge of
the Company and the Guarantors, threatened against, the
Company, any of the Guarantors or any of the Company's other
subsidiaries before any court or arbitrator or any
governmental body, agency or official that, if adversely
determined, could reasonably be expected to result in a
Material Adverse Effect; and no stop order shall have been
issued preventing the use of the Offering Memorandum, or any
amendment or supplement thereto, or which could reasonably
be expected to have a Material Adverse Effect.
(d) Since the dates as of which information is given
in the Offering Memorandum, (i) there shall not have been
any material change, or any development that is reasonably
likely to result in a material adverse change, in the
capital stock or the long-term debt, or material increase in
the short-term debt, of the Company, any of the Guarantors
or any of the Company's other subsidiaries from that set
forth in the Offering Memorandum, (ii) no dividend or
distribution of any kind shall have been declared, paid or
made by the Company on any class of its capital stock and
(iii) other than pursuant to this Agreement, none of the
Company, the Guarantors or any of the Company's other
subsidiaries shall have incurred any liabilities or
obligations, direct or contingent, that are or will be
material, individually or in the aggregate, to the Company,
the Guarantors and the Company's other subsidiaries, taken
as a whole, and that are required to be disclosed on a
balance sheet or notes thereto in accordance with generally
accepted accounting principles and are not disclosed on the
latest balance sheet or notes thereto included in the
Offering Memorandum. Since the date hereof and since the
dates as of which information is given in the Offering
Memorandum, there shall not have occurred any material
adverse change in the business, financial condition or
results of operation of the Company, the Guarantors and
their subsidiaries, taken as a whole.
(e) The Initial Purchasers shall have received a
certificate, dated the Closing Date, signed on behalf of
each of the Company and the Guarantors by two senior
officers, one of whom must be its Chief Financial Officer,
in form and substance satisfactory to the Initial
Purchasers, confirming, as of the Closing Date, the matters
set forth in paragraphs (a), (b), (c) and (d) of this
Section 8.
(f) ▇▇▇▇ & Priest LLP, U.S. counsel for the Company,
shall have furnished to the Initial Purchasers their written
opinion, dated the Closing Date, in form and substance
satisfactory to the Initial Purchasers, to the effect that:
(i) This Agreement and the Registration Rights
Agreement have been duly authorized, executed and
delivered by the Company and the Guarantors;
(ii) The Series A Notes have been duly authorized,
executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the
Indenture; the Series B Notes have been duly authorized
for issuance by the Company and, when duly executed,
authenticated, issued and delivered in exchange for the
Series A Notes in accordance with the terms of the
Indenture, will constitute valid and legally binding
obligations of the Company entitled to the benefits
provided by the Indenture; and the Indenture, the
Guarantees and the Notes conform, as to legal matters,
in all material respects to the descriptions thereof in
the Offering Memorandum;
(iii) The Indenture has been duly authorized,
executed and delivered by the Company and the
Guarantors and, assuming it has been duly authorized,
executed and delivered by the Trustee, constitutes a
valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting
creditors' rights and to general equity principles
(regardless of whether such enforcement is considered
in a proceeding in equity or at law);
(iv) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the issue
and sale of the Notes or Guarantees or the consummation
by the Company of the transactions contemplated by this
Agreement or the Indenture, except such as may be
required under the Act in connection with the
transactions contemplated by the Registration Rights
Agreement and such consents, approvals, authorizations,
registrations or qualifications as may be required
under state securities or Blue Sky laws in connection
with the purchase and distribution of the Series A
Notes and Guarantees by the Initial Purchasers;
(v) The statements in the Offering Memorandum
under the caption "Description of the Notes," insofar
as they purport to summarize the terms of the Notes and
the Guarantees, are accurate in all material respects,
and the statements of law contained in the Offering
Memorandum under the caption "Certain Tax Consequences-
-United States Considerations" are accurate in all
material respects;
(vi) No registration of the Series A Notes or
Guarantees under the Act, and no qualification of an
indenture under the Trust Indenture Act of 1939, as
amended, with respect thereto, is required for the
initial offer and sale by the Company, or the resale by
the Initial Purchasers, of the Series A Notes and
Guarantees in the manner contemplated by this Agreement
and the Offering Memorandum;
(vii) The issue and sale of the Series A Notes
and Guarantees and the compliance by the Company and
the Guarantors with all of the provisions of the Series
A Notes, Guarantees, the Indenture, the Registration
Rights Agreement and this Agreement and the
consummation of the transactions therein and herein
contemplated will not result in a breach or violation
of any of the terms or provisions of, or constitute a
default under the Credit Facility (as defined in the
Preliminary Offering Memorandum) or any other agreement
for borrowed money filed as an exhibit to the Company's
Annual Report on Form 10-K for its fiscal year ended
November 30, 1997;
(viii) The Company is duly qualified as a
foreign corporation for the transaction of business and
is in good standing under the laws of the State of
Texas; and
(ix) Each Guarantor incorporated or organized in
the State of Delaware (each a "Delaware Guarantor" and
------------------
collectively, the "Delaware Guarantors") has been duly
-------------------
incorporated or organized and is validly existing as a
corporation in good standing under the laws of the
State of Delaware; all of the issued shares of capital
stock of each Delaware Guarantor have been duly and
validly authorized and issued and are fully paid and
nonassessable; to such counsel's knowledge, all of the
issued shares of capital stock of each Delaware
Guarantor are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances,
equities or claims.
In addition, such opinion shall also contain a
statement that such counsel has participated in conferences
with certain officers and representatives of the Company,
counsel to the Initial Purchasers, representatives of the
independent public accountants of the Company, and
representatives of the Initial Purchasers at which the
contents of the Offering Memorandum and related matters were
discussed and, although such counsel is not passing upon and
does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Offering Memorandum (except as stated in clause (vii)
above), on the basis of the foregoing (relying as to
materiality upon the officers and other representatives of
the Company), no information has come to the attention of
such counsel that have caused it to believe that the
Offering Memorandum, as of its date, contained any untrue
statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading; it being understood that such counsel need make
no comment as to the financial statements and other
financial or statistical data included in the Offering
Memorandum; in rendering such opinion, such counsel may (i)
rely in respect to matters of fact upon certificates of
officers of the Company and its subsidiaries and upon
information obtained from public officials, (ii) assume that
all documents submitted to such counsel as originals are
authentic, that all copies submitted to such counsel conform
to the originals thereof, and that the signatures on all
documents examined by such counsel are genuine, (iii) rely
as to all matters of Canadian law upon the opinion of
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Canadian counsel to the Company,
referred to in paragraph (j) below, (iv) state that such
counsel's opinion is limited to, except in reliance upon the
opinion of Canadian counsel as aforesaid, (a) federal law
and the laws of the State of New York and the General
Corporation Law of the State of Delaware, (v) assume the due
authorization, execution and delivery by the Company of this
Agreement, the Registration Rights Agreement, the Indenture
and the Series A Notes, and the due authorization by the
Company of the Series B Notes, (vi) assume, with respect to
the due authorization, execution and delivery of this
Agreement, the Registration Rights Agreement and the
Indenture by all Guarantors not incorporated in the State of
Delaware, that the laws of each such Guarantor's
jurisdiction of incorporation are similar to the laws of the
State of New York, and (vii) may make such other assumptions
and qualifications as may be reasonably acceptable to the
Initial Purchasers.
(g) At the time this Agreement is executed and at the
Closing Date, the Initial Purchasers shall have received
from Coopers & ▇▇▇▇▇▇▇, L.L.P. and Karlins ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
Klodosky P.C., independent accountants, dated as of the date
of this Agreement and as of the Closing Date, customary
comfort letters addressed to the Initial Purchasers and in
form and substance reasonably satisfactory to the Initial
Purchasers and counsel for the Initial Purchasers with
respect to the financial statements and certain financial
information of the Company and its subsidiaries contained in
the Offering Memorandum.
(h) The Initial Purchasers shall have received an
opinion, dated the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchasers, of
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Initial Purchasers,
covering such matters as are customarily covered in such
opinions. In rendering such opinion, such counsel may rely
as to all matters of Canadian law upon the opinion of
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ referred to in paragraph (j)
below.
(i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall have been furnished
with such documents, in addition to those set forth above,
as they may reasonably require for the purpose of enabling
them to review or pass upon the matters referred to in this
Section 8 and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any
of the representations, warranties or conditions herein
contained.
(j) Further, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Canadian
counsel to the Company, shall have furnished to the Initial
Purchasers their written opinion, dated the Closing Date, in
form and substance satisfactory to the Initial Purchasers,
to the effect that:
(i) The statements of law contained in "Certain
Tax Considerations--Canadian Taxation" and the second
paragraph of "Description of the Notes--Enforceability
of Judgments; Indemnification for Foreign Currency
Judgments" in the Offering Memorandum are accepted in
all material respects;
(ii) The Company has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the Ontario, Canada, with corporate
power and authority to own its properties and conduct
its business as described in the Offering Memorandum;
(iii) The Company has an authorized
capitalization as set forth under the caption
"Capitalization" in the Offering Memorandum, and all of
the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are
fully paid and non-assessable;
(iv) This Agreement and the Registration Rights
Agreement have been duly authorized, executed and
delivered by the Company;
(v) The Series A Notes have been duly authorized,
executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the
Indenture; the Series B Notes have been duly authorized
for issuance by the Company; and, to the extent
Canadian law applies, when duly executed,
authenticated, issued and delivered in exchange for the
Series A Notes in accordance with the terms of the
Indenture, the Series B Notes will constitute valid and
legally binding obligations of the Company entitled to
the benefits provided by the Indenture;
(vi) The Indenture has been duly authorized,
executed and delivered by the Company, to the extent
Canadian law applies and assuming it has been duly
authorized, executed and delivered by the Trustee, the
Indenture constitutes a valid and legally binding
instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to
general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or
at law); and
(vii) The issue and sale of the Series A Notes
and Guarantees and the compliance by the Company with
all of the provisions of the Series A Notes,
Guarantees, the Indenture, the Registration Rights
Agreement and this Agreement and the consummation of
the transactions therein and herein contemplated will
not result in a violation of the provisions of the
Certificate of Incorporation or By-Laws of the Company;
(k) Prior to the Closing Date, the Company and the
Guarantors shall have furnished to the Initial Purchasers
such further information, certificates and documents as the
Initial Purchasers may reasonably request.
(l) The Company, the Guarantors and the Trustee shall
have entered into the Indenture.
(m) The Company and the Guarantors shall have entered
into the Registration Rights Agreement with the Initial
Purchasers.
All opinions, certificates, letters and other documents
required by this Section 8 to be delivered by the Company and the
Guarantors will be in compliance with the provisions hereof only
if they are reasonably satisfactory in form and substance to the
Initial Purchasers. The Company and the Guarantors will furnish
the Initial Purchasers with such conformed copies of such
opinions, certificates, letters and other documents as they shall
reasonably request.
9. INITIAL PURCHASERS' INFORMATION. The Company, the
-------------------------------
Guarantors and the Initial Purchasers acknowledge that the
statements with respect to the offering of the Series A Notes set
forth in the last paragraph of the cover page and the third,
fifth and sixth paragraphs, the fourth sentence of the seventh
paragraph and the eight paragraph under the caption "Plan of
Distribution" in the Offering Memorandum constitute the only
information furnished in writing by the Initial Purchasers
expressly for use in the Offering Memorandum.
10. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All
------------------------------------------
representations and warranties, covenants and agreements of the
Initial Purchasers, the Company and the Guarantors contained in
this Agreement, including the agreements contained in Sections
4(g) and 11(d), the indemnity agreements contained in Section 6
and the contribution agreements contained in Section 7, shall
remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Initial Purchasers, any
controlling person thereof, or by or on behalf of the Company,
the Guarantors or any controlling person thereof, and shall
survive delivery of and payment for the Series A Notes to and by
the Initial Purchasers. The representations contained in
Section 5 and the agreements contained in Sections 4(g), 6, 7 and
11(d) shall survive the termination of this Agreement, including
any termination pursuant to Section 11.
11. EFFECTIVE DATE OF AGREEMENT; TERMINATION. (a) This
----------------------------------------
Agreement shall become effective upon execution and delivery of a
counterpart hereof by each of the parties hereto.
(b) The Initial Purchasers shall have the right to
terminate this Agreement at any time prior to the Closing Date by
notice to the Company from the Initial Purchasers, without
liability (other than with respect to Sections 6 and 7) on the
Initial Purchasers' part to the Company or any of the Guarantors
if, on or prior to such date, (i) the Company or any of the
Guarantors shall have failed, refused or been unable to perform
any agreement on its part to be performed hereunder, (ii) any
other condition to the obligations of the Initial Purchasers
hereunder as provided in Section 8 is not fulfilled when and as
required or (iii)(A) any domestic or international event or act
or occurrence has materially disrupted, or in the reasonable
opinion of the Initial Purchasers will in the immediate future
materially disrupt the market for the Company's securities or for
securities in general, (B) trading in securities generally on the
New York Stock Exchange shall have been suspended or materially
limited, or minimum or maximum prices for trading shall have been
established, or maximum ranges for prices for securities shall
have been required, on such exchange, or by such exchange or
other regulatory body or governmental authority having
jurisdiction, (C) a banking moratorium shall have been declared
by federal or New York State authorities, or a moratorium in
foreign exchange trading by major international banks or persons
shall have been declared, (D) there is an outbreak or escalation
of armed hostilities involving the United States on or after the
date hereof, or if there has been a declaration by the United
States of a national emergency or war, the effect of which shall
be, in the Initial Purchasers' judgment, to make it inadvisable
or impracticable to proceed with the offering or delivery of the
Series A Notes on the terms and in the manner contemplated in the
Offering Memorandum, or (E) there shall have been such a material
adverse change in general economic, political or financial
conditions or if the effect of international conditions on the
financial markets in the United States shall be such as, in the
Initial Purchasers' judgment, to make it inadvisable or
impracticable to proceed with the delivery of the Series A Notes
as contemplated hereby.
(c) Any notice of termination pursuant to this Section 11
shall be by telephone, telephonic facsimile, or telegraph,
confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any
of the provisions hereof, or if the sale of the Series A Notes
provided for herein is not consummated because any condition to
the obligations of the Initial Purchasers set forth herein is not
satisfied or because of any refusal, inability or failure on the
part of the Company or any of the Guarantors to perform any
agreement herein or comply with any provision hereof, the Company
and the Guarantors will reimburse the Initial Purchasers for all
reasonable out-of-pocket expenses (including the reasonable fees
and expenses of Initial Purchasers' counsel), incurred by the
Initial Purchasers in connection herewith.
12. NOTICE. All communications hereunder, except as may be
------
otherwise specifically provided herein, shall be in writing and,
if sent to the Initial Purchasers, shall be mailed, delivered, or
telecopied and confirmed in writing to ▇▇▇▇▇▇▇▇▇ & Company, Inc.,
2 Houston Center, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Finance Department, telecopy number
(▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., 2300 First
City Tower, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
T. ▇▇▇▇ ▇▇▇▇▇, telecopy number (▇▇▇) ▇▇▇-▇▇▇▇; and if sent to the
Company, shall be mailed, delivered or telecopied and confirmed
in writing to it at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: Chief Administrative Officer, telecopy number (281)
774-7006, with a copy to ▇▇▇▇ & Priest LLP, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, telecopy
number (▇▇▇)▇▇▇-▇▇▇▇.
13. PARTIES. This Agreement shall inure solely to the
-------
benefit of, and shall be binding upon, the Initial Purchasers,
the Company, the Guarantors and the controlling persons and
agents referred to in Sections 6 and 7, and their respective
successors and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim
under or in respect of or by virtue of this Agreement or any
provision herein contained. The term "successors and assigns"
----------------------
shall not include a purchaser, in its capacity as such, of Notes
from the Initial Purchasers.
14. CONSTRUCTION. This Agreement shall be construed in
------------
accordance with the internal laws of the State of New York.
15. CAPTIONS. The captions included in this Agreement are
--------
included solely for convenience of reference and are not to be
considered a part of this Agreement.
16. COUNTERPARTS. This Agreement may be executed in
------------
various counterparts which together shall constitute one and the
same instrument.
17. PARTIAL INVALIDITY. In case any provision of this
------------------
Agreement shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
[Signature page to follow]
If the foregoing correctly sets forth the understanding
among the Initial Purchasers, the Company and the Guarantors
please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement among
us.
Very truly yours,
American Eco Corporation
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President and
Chief Administrative Officer
The ▇▇▇▇▇▇ Group, Inc.
C.A. ▇▇▇▇▇▇ Construction Company
Action Contract Services, Inc.
C.A. ▇▇▇▇▇▇ Maintenance, Inc.
H.E. Co. Services, Inc.
Cambridge Construction Service Corp.
Lake ▇▇▇▇▇▇▇ Construction Corporation
United Eco Systems, Inc.
Eco Systems, Inc.
MM Industra Limited
Separation and Recovery Systems, Inc.
Industra Service Corporation
Industra Engineers & Consultants, Inc.
Industra Thermal Service Corporation
NUS, Inc.
Industra Service Corp.
Industra, Inc.
Industra Thermal Service Corp.
Chempower, Inc.
Global Power Company
Brookfield Corporation
Southwick Corporation
Controlled Power Limitd Partnership
Specialty Management Group, Inc.
Separation and Recovery Systems, Ltd.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
Accepted and agreed to as of
the date first above written:
▇▇▇▇▇▇▇▇▇ & Company, Inc.
By /s/ ▇▇▇ ▇▇▇▇
----------------------------
Name: ▇▇▇ ▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ Securities Inc.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Director
ANNEX I
(1) The Series A 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. Each Initial
Purchaser represents that it has offered and sold the Series A
Nots, and will offer and sell the Series A Notes upon the
conversion thereof (i) as part of their distribution at any time
and (ii) otherwise until 40 days after the later of the
commencement of the offering and the Closing Date, only in
accordance with Rule 903 of Regulation S or Rule 144A under the
Securities Act or pursuant to Paragraph 2 of this Annex I.
Accordingly, each Initial Purchaser 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 with
respect to the Series A Notes, and it and they have complied and
will comply with the offering restrictions requirement of
Regulation S. Each Initial Purchaser agrees that, at or prior to
confirmation of sale of Securities (other than a sale pursuant to
Rule 144A or pursuant to Paragraph 2 of this Annex I), it will
have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases
Series A Notes from it during the Restricted Period (as defined
in the Offering Memorandum) a confirmation or notice to
substantially the following effect:
"The Series A Notes have not been registered under
the United States Securities Act of 1933, as amended
(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 and 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 meaning given to them by Regulation S under
the Securities Act."
Terms used in this paragraph have the meanings given to them by
Regulation S.
Each 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 Securities, except
with its affiliates or with the prior written consent of the
Company.
(2) Notwithstanding the foregoing, Series A Notes in
registered form may be offered, sold and delivered by the
Purchasers in the United States and to U.S. persons pursuant to
Section 3(a)(i) or (ii) of this Agreement without delivery of the
written statement required by paragraph (1) above.
(3) Each Initial Purchaser further represents and agrees
that (i) it has not offered or sold or invited any person to
offer to purchase and, prior to the date six months after the
date the Series A Notes are purchased by such Initial Purchaser,
will not offer or sell any Series A Notes to persons or invite
any person to offer to purchase any Series A Notes in the United
Kingdom except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995,
(ii) it has complied, and will comply, with all applicable
provisions of the Financial Services ▇▇▇ ▇▇▇▇ of Great Britain
with respect to anything done by it in relation to the Series A
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 Series A Notes to a person
who is of a kind described in Article 11(3) of the Financial
Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions) Order
1995 of Great Britain or is a person to whom the document may
otherwise lawfully be issued or passed on.
(4) Each Initial Purchaser agrees that it will not offer,
sell or deliver any of the Series A Notes in any jurisdiction
outside the United States except under circumstances that will
result in compliance with the applicable laws thereof, and that
it will take at its own expense whatever action is required to
permit its purchase and resale of the Series A Notes in such
jurisdictions. Each Initial Purchaser understands that no action
has been taken to permit a public offering in any jurisdiction
outside the United States where action would be required for such
purpose. Each Initial Purchaser agrees not to cause any
advertisement of the Series A Notes to be published in any
newspaper or periodical or posted in any public place and not to
issue any circular relating to the Series A Notes, except in any
such case with the express written consent of ▇▇▇▇▇▇▇▇▇ &
Company, Inc. and then only at its own risk and expense.
EXHIBIT A
American Eco Corporation
The ▇▇▇▇▇▇ Group, Inc. (DE)
C.A. ▇▇▇▇▇▇ Construction Company (DE)
Action Contract Services, Inc. (DE)
C.A. ▇▇▇▇▇▇ Maintenance, Inc. (DE)
H.E. Co. Services, Inc. (TX)
Cambridge Construction Service Corp. (NV)
Lake ▇▇▇▇▇▇▇ Construction Corporation (LA)
United Eco Systems, Inc. (DE)
Eco Systems, Inc. (DE)
MM Industra Limited (NS)
Separation and Recovery Systems, Inc. (NV)
Industra Service Corporation (BC)
Industra Engineers & Consultants, Inc. (BC)
Industra Thermal Service Corporation (AB)
NUS, Inc. (WA)
Industra Service Corp. (WA)
Industra, Inc. (WA)
Industra Thermal Service Corp. (WA)
Chempower, Inc. (OH)
Global Power Company (OH)
Brookfield Corporation (OH)
Southwick Corporation (OH)
Controlled Power Limitd Partnership (IL)
Specialty Management Group, Inc. (TX)
Separation and Recovery Systems, Ltd. (UK)