EXECUTION COPY
$110,000,000
ROLLER BEARING COMPANY OF AMERICA, INC.
9-5/8% Senior Subordinated Notes Due 2007
PURCHASE AGREEMENT
June 17, 1997
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, N.Y. 10010
Ladies and Gentlemen:
1. Introductory. Roller Bearing Company of America, Inc., a Delaware
corporation (the "Company"), proposes, subject to the terms and conditions
stated herein, to issue and sell to Credit Suisse First Boston Corporation (the
"Initial Purchaser") U.S.$110,000,000 principal amount of its 9-5/8% Senior
Subordinated Notes Due 2007 (the "Offered Securities") to be unconditionally
guaranteed (the "Guaranty"), jointly and severally, on a senior subordinated
basis by Industrial Tectonics Bearings Corporation, RBC Linear Precision
Products, Inc. and RBC Nice Bearings, Inc. (collectively, the "Subsidiary
Guarantors"). The Offered Securities are to be issued under an Indenture dated
as of June 15, 1997 (the "Indenture") between the Company, the Subsidiary
Guarantors and United States Trust Company of New York, as trustee (the
"Trustee").
The Offered Securities are being offered and sold in connection with the
consummation of the transactions
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contemplated by the Redemption and Warrant Purchase Agreement dated as of May
20, 1997 (the "Recapitalization Agreement"), among Roller Bearing Holding
Company, Inc. ("Holdings") and certain of its security holders. To finance the
Recapitalization, the Company will enter into senior credit facilities and will
issue the Offered Securities, Holdings will issue units (the "Units") consisting
of its senior secured discount debentures and warrants to purchase its common
stock.
Holders (including subsequent transferees) of the Offered Securities will
have the registration rights set forth in a registration rights agreement of
even date herewith among the Company, the Subsidiary Guarantors and the Initial
Purchaser (the "Registration Rights Agreement"). Pursuant to the Registration
Rights Agreement, the Company has agreed to file with the Securities and
Exchange Commission (the "Commission") (i) a registration statement under the
United States Securities Act of 1933 (the "Securities Act"), registering an
issue of a series of senior subordinated notes (the "Exchange Securities")
identical in all material respects to the Offered Securities (except that the
Exchange Securities will not contain terms with respect to transfer
restrictions) to be offered in exchange for the Offered Securities and (ii)
under certain circumstances, a shelf registration statement pursuant to Rule 415
under the Securities Act.
This Agreement, the Indenture and the Registration Rights Agreement are
referred to herein collectively as the "Operative Documents".
The Company and the Subsidiary Guarantors hereby agree with the Initial
Purchaser as follows:
2. Representations and Warranties of the Company and the Subsidiary
Guarantors. The Company and the Subsidiary Guarantors, jointly and severally,
represent and warrant to, and agree with, the Initial Purchaser that:
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(a) A preliminary offering circular, dated May 30, 1997 (the
"Preliminary Offering Circular"), and an offering circular, dated June 17, 1997
(the "Offering Circular"), relating to the Offered Securities to be offered by
the Initial Purchaser have been prepared by the Company. Such Preliminary
Offering Circular and Offering Circular are hereinafter collectively referred to
as the "Offering Document". As of their respective dates and, in the case of the
Offering Circular, as of the date of this Agreement, the Offering Document does
not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except for such
misstatements or omissions in the Preliminary Offering Circular that were
corrected in the Offering Circular. The preceding sentence does not apply to
statements in or omissions from the Offering Document based upon written
information furnished to the Company by the Initial Purchaser specifically for
use therein, it being understood and agreed that the only such information is
that described as such in Section 7(b) hereof.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Offering Document; the Company is duly qualified to
do business as a foreign corporation in good standing in all other jurisdictions
in which its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to so qualify could not
reasonably be expected to have a material adverse effect upon the condition
(financial or other), results of operations, business affairs or business
prospects of the Company and its subsidiaries, taken as a whole (a "Material
Adverse Effect"); and all of the issued and outstanding capital stock of the
Company has been duly authorized and issued, is fully paid and nonassessable and
is owned by Holdings.
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(c) Each subsidiary of the Company has been duly incorporated and is
an existing corporation in good standing under the laws of the jurisdiction of
its incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Offering Document; and
each subsidiary of the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such qualification,
except where the failure to so qualify could not reasonably be expected to have
a Material Adverse Effect; all of the issued and outstanding capital stock of
each subsidiary of the Company has been duly authorized and validly issued and
is fully paid and nonassessable; and the capital stock of each subsidiary owned
by the Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects, except for liens incurred in relation to the Company's
credit facility with Heller Financial (the "Heller Credit Facility").
(d) The Indenture has been duly authorized by the Company and the
Subsidiary Guarantors; the Offered Securities have been duly authorized by the
Company; the Guaranty of the Offered Securities by each Subsidiary Guarantor has
been duly authorized by such Subsidiary Guarantor; and when the Offered
Securities are delivered and paid for pursuant to this Agreement on the Closing
Date (as defined below), the Indenture will have been duly executed and
delivered by the Company and the Subsidiary Guarantors, such Offered Securities
will have been duly executed, authenticated, issued and delivered by the Company
and (together with the Guaranty) will conform to the description thereof
contained in the Offering Document and the Indenture, such Offered Securities
and the Guaranty will constitute valid and legally binding obligations of the
Company and the Subsidiary Guarantors, as the case may be, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
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relating to or affecting creditors' rights and to general equity principles.
(e) The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and the Subsidiary Guarantors and conforms
in all material respects to the description thereof contained in the Offering
Document. The Registration Rights Agreement constitutes a valid and legally
binding obligation of each of the Company and the Subsidiary Guarantors.
(f) The Recapitalization Agreement has been duly authorized,
executed and delivered by Holdings and conforms in all material respects to the
descriptions thereof in the Offering Document. The Recapitalization Agreement
constitutes a valid and legally binding obligation of Holdings.
(g) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or the Initial Purchaser
for a brokerage commission, finder's fee or other like payment in connection
with the offering of the Offered Securities.
(h) Except as provided in Schedule 2(h), no consent, approval,
authorization, or order of, or filing with, any governmental agency or body or
any court is required for the consummation of the transactions contemplated by
the Operative Documents or the Recapitalization Agreement or in connection with
the issuance and sale of the Offered Securities by the Company or the Units by
Holdings, other than as may be required under the Securities Act and the Rules
and Regulations of the Commission thereunder with respect to the Registration
Rights Agreement and the transactions contemplated thereunder and such as may be
required by state securities or blue sky laws in connection with the offer and
sale of the Offered Securities, except where failure to obtain such consent,
approval or authorization could not reasonably be expected to have a Material
Adverse Effect or would not
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materially and adversely affect the legal, valid and binding obligations of the
Company under the Operative Documents, the ability of the Company to perform its
obligations under any of the Operative Documents or which are otherwise material
in the context of the sale of the Offered Securities.
(i) The execution, delivery and performance of the Operative
Documents, the Recapitalization Agreement and the issuance and sale of the
Offered Securities and compliance with the terms and provisions thereof, will
not result in a breach or violation of any of the terms and provisions of, or
constitute a default under, (i) any statute, rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over Holdings, the Company or any subsidiary of the Company or any
of their properties, (ii) any agreement or instrument to which Holdings, the
Company or any such subsidiary is a party or by which Holdings, the Company or
any such subsidiary is bound or to which any of the properties of Holdings, the
Company or any such subsidiary is subject or (iii) the charter or by-laws of
Holdings, the Company or any such subsidiary; and the Company and the Subsidiary
Guarantors have full power and authority to authorize, issue and sell the
Offered Securities (and related Guaranty) as contemplated by this Agreement,
except, in the case of the clause (i) or (ii), such breaches, violations or
defaults that individually or in the aggregate could not be reasonably expected
to have a Material Adverse Effect or would not materially and adversely affect
the legal, valid and binding obligations of the Company under the Operative
Documents, the ability of the Company to perform its obligations under any of
the Operative Documents or which are otherwise material in the context of the
sale of the Offered Securities.
(j) This Agreement has been duly authorized, executed and delivered
by the Company and the Subsidiary Guarantors.
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(k) Except as disclosed in the Offering Document, the Company and
its subsidiaries have good and marketable title to all material real properties
and all other material properties and assets owned by them, in each case free
from liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof by them,
except for liens incurred in relation to the Heller Credit Facility; and except
as disclosed in the Offering Document, the Company and its subsidiaries hold any
leased real or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be made
thereof by them.
(l) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by them and have not received any
notice of proceedings relating to the revocation or modification of any such
certificate, authority or permit that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(m) Except as disclosed in the Offering Document, no labor dispute
with the employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent that might have a Material Adverse Effect.
(n) Except as disclosed in the Offering Document, the Company and
its subsidiaries own, possess or can acquire on reasonable terms, adequate
trademarks, trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual property
(collectively, "Intellectual Property Rights") necessary to conduct the business
now operated by them, except where the failure to possess or acquire such
Intellectual Property Rights could not reasonably be expected to have a Material
Adverse Effect, or presently employed by them, and have not received any notice
of infringement of or conflict with asserted rights of others with respect to
any Intellectual
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Property Rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material Adverse
Effect.
(o) Except as disclosed in the Offering Document, neither the
Company nor any of its subsidiaries is in violation of any statute, rule,
regulation, decision or order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release of hazardous or
toxic substances or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively, "Environmental
Laws"), or owns or operates any real property contaminated with any substance
that is subject to any Environmental Laws, is liable for any off-site disposal
or contamination pursuant to any Environmental Laws, or is subject to any claim
relating to any Environmental Laws, which violation, contamination, liability or
claim would individually or in the aggregate have a Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead to such a
claim.
(p) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect,
or would materially and adversely affect the legal, valid and binding
obligations of the Company under the Operative Documents, the ability of the
Company to perform its obligations under any of the Operative Documents or which
are otherwise material in the context of the sale of the Offered Securities; and
no such actions, suits or proceedings are threatened or, to the Company's
knowledge, contemplated.
(q) The Company has delivered to the Initial Purchaser true and
correct copies of the Recapitalization Agreement in the form as originally
executed, and there have been no amendments or waivers thereto or in the
exhibits or
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schedules thereto other than those as to which the Initial Purchaser shall have
been advised.
(r) The historical financial statements included in the Offering
Document present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of operations
and cash flows for the periods shown, and, except as otherwise disclosed in the
Offering Document, such financial statements have been prepared in conformity
with the generally accepted accounting principles in the United States applied
on a consistent basis and the assumptions used in preparing the pro forma
financial statements included in the Offering Document provide a reasonable
basis for presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma columns therein
reflect the proper application of those adjustments to the corresponding
historical financial statement amounts.
(s) Except as disclosed in the Offering Document, since the date of
the latest audited financial statements included in the Offering Document there
has been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or contemplated by
the Offering Document, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(t) Neither the Company nor any Subsidiary Guarantor is an open-end
investment company, unit investment trust or face-amount certificate company
that is or is required to be registered under Section 8 of the United States
Investment Company Act of 1940 (the "Investment Company Act"); neither the
Company nor any Subsidiary Guarantor is a closed-end investment company required
to be registered, but not registered, thereunder; and nor, after
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giving effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the Offering Document, will
any of them be, an "investment company" as defined in the Investment Company
Act.
(u) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities or the Guaranty
are listed on any national securities exchange registered under Section 6 of the
United States Securities Exchange Act of 1934 ("Exchange Act") or quoted in a
U.S. automated inter-dealer quotation system.
(v) Assuming the correctness of the representations and warranties
of the Initial Purchaser contained in Section 4, the offer and sale of the
Offered Securities in the manner contemplated by this Agreement will be exempt
from the registration requirements of the Securities Act; and it is not
necessary to qualify an indenture in respect of the Offered Securities or the
Guaranty under the United States Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act").
(w) Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf (i) has, within the six-month period prior to the
date hereof, offered or sold in the United States or to any U.S. person (as such
terms are defined in Regulation S under the Securities Act) the Offered
Securities, the Guaranty or any security of the same class or series as the
Offered Securities or the Guaranty (except the Senior Secured Discount
Debentures offered by Holdings in connection with the transactions contemplated
by the Recapitalization Agreement) or (ii) has offered or will offer or sell the
Offered Securities or the Guaranty (A) in the United States by means of any form
of general solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act or (B) with respect to any such securities sold in
reliance on Rule 903 of Regulation S ("Regulation S") under the Securities Act,
by means of any directed
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selling efforts within the meaning of Rule 902(b) of Regulation S. The Company,
its affiliates and any person acting on its or their behalf have complied and
will comply with the offering restrictions requirement of Regulation S. Neither
the Company nor any Subsidiary Guarantor has entered or will enter into any
contractual arrangement with respect to the distribution of the Offered
Securities or the Guaranty except for this Agreement and the Registration Rights
Agreement.
3. Purchase, Sale and Delivery of Offered Securities. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Company agrees to sell to the
Initial Purchaser, and the Initial Purchaser agrees to purchase from the
Company, at a purchase price of 96.5% of the principal amount thereof plus
accrued interest from June 23, 1997 to the Closing Date (as hereinafter
defined), U.S. $110,000,000 principal amount of the Offered Securities.
The Company will deliver against payment of the purchase price the
Offered Securities in the form of one or more permanent global securities in
definitive form (the "Global Securities") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global Securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Offering Document. Payment for the Offered
Securities shall be made by the Initial Purchaser in Federal (same day) funds by
wire transfer to an account previously designated to the Initial Purchaser by
the Company at a bank acceptable to the Initial Purchaser at the office of
McDermott, Will & Emery at 10:00 A.M. (New York Time) on June 23, 1997, or at
such other time not later than seven full business days thereafter as the
Initial Purchaser and the Company determine, such time being herein referred to
as the "Closing Date", against delivery to the Trustee as custodian for DTC of
the Global Securities representing all of the Offered Securities. The Global
Securities will be
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made available for checking at the office of the Trustee at least 24 hours prior
to the Closing Date.
4. Representations by the Initial Purchaser; Resale by the Initial
Purchaser. (a) The Initial Purchaser represents and warrants to the Company that
it is an "accredited investor" within the meaning of Regulation D under the
Securities Act.
(b) The Initial Purchaser acknowledges that the Offered Securities
have not been registered under the Securities Act and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons
except in accordance with Regulation S or pursuant to an exemption from the
registration requirements of the Securities Act. The Initial Purchaser
represents and agrees that it has offered and sold the Offered Securities, and
will offer and sell the Offered Securities (i) as part of its distribution at
any time and (ii) otherwise until 40 days after the later of the commencement of
the offering of the Offered Securities and the Closing Date, only in accordance
with Rule 903 or Rule 144A under the Securities Act ("Rule 144A"). Accordingly,
neither the Initial Purchaser nor its affiliates, nor any persons acting on its
or their behalf, have engaged or will engage in any directed selling efforts
with respect to the Offered Securities, and the Initial Purchaser, its
affiliates and all persons acting on its or their behalf have complied and will
comply with the offering restrictions requirement of Regulation S. The Initial
Purchaser agrees that, at or prior to confirmation of sale of the Offered
Securities, other than a sale pursuant to Rule 144A, the Initial Purchaser will
have sent to each distributor, dealer or person receiving a selling concession,
fee or other remuneration that purchases the Offered Securities from it during
the restricted period a confirmation or notice substantially to the following
effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933 (the "Securities Act") and may not be offered or
sold within the
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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 date
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 meanings given to them by Regulation S."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) The Initial Purchaser agrees that it and each of its affiliates
has not entered and will not enter into any contractual arrangement with respect
to the distribution of the Offered Securities except with the prior written
consent of the Company.
(d) The Initial Purchaser agrees that it and each of its affiliates
will not offer or sell the Offered Securities in the United States by means of
any form of general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act, including, but not limited to (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio, or
(ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. The Initial Purchaser agrees, with respect
to resales made in reliance on Rule 144A of any of the Offered Securities, to
deliver either with the confirmation of such resale or otherwise prior to
settlement of such resale a notice to the effect that the resale of such Offered
Securities has been made in reliance upon the exemption from the registration
requirements of the Securities Act provided by Rule 144A.
(e) The Initial Purchaser represents and agrees that (i) it has not
offered or sold and prior to the date six months after the date of issue of the
Offered Securities will not offer or sell any Offered Securities to persons in
the United Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or
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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 Act 1986 with
respect to anything done by it in relation to the Offered Securities in, from or
otherwise involving the United Kingdom; and (iii) it has only issued or passed
on and will only issue or pass on in the United Kingdom any document received by
it in connection with the issue of the Offered Securities to a person who is of
a kind described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1995 or is a person to whom such document may
otherwise lawfully be issued or passed on.
(f) This Agreement has been duly authorized, executed and delivered
by the Initial Purchaser.
5. Certain Agreements of the Company. The Company agrees with the
Initial Purchaser that:
(a) The Company will advise the Initial Purchaser promptly of any
proposal to amend or supplement the Offering Document and will not effect such
amendment or supplementation without the Initial Purchaser's consent (which
consent shall not be unreasonably withheld). If, at any time prior to the
completion of the resale of the Offered Securities by the Initial Purchaser, any
event occurs as a result of which the Offering Document as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, the
Company promptly will notify the Initial Purchaser of such event and promptly
will prepare, at its own expense, an amendment or supplement which will correct
such statement or omission. The Initial Purchaser's consent to delivery to
offerees or investors of any such amendment or supplement
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shall not constitute a waiver of any of the conditions set forth in Section 6.
(b) The Company will furnish to the Initial Purchaser copies of the
Offering Document and all amendments and supplements to such document, in each
case as soon as available and in such quantities as the Initial Purchaser
requests, and the Company will furnish to the Initial Purchaser on the date
hereof one copy of the Offering Circular which will include the independent
accountants' reports therein manually signed by such independent accountants. At
any time when the Company is not subject to Section 13 or 15(d) of the Exchange
Act, the Company will promptly furnish or cause to be furnished to the Initial
Purchaser and, upon request of holders and prospective purchasers of the Offered
Securities, to such holders and purchasers, copies of the information required
to be delivered to holders and prospective purchasers of the Offered Securities
pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision
thereto) in order to permit compliance with Rule 144A in connection with resales
by such holders of the Offered Securities. The Company will pay the expenses of
printing and distributing to the Initial Purchaser all such documents.
(c) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions in the United States
and Canada as the Initial Purchaser designates and will continue such
qualifications in effect so long as required for the resale of the Offered
Securities by the Initial Purchaser, provided that the Company will not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any such state.
(d) During the period of ten years hereafter, the Company will
furnish to the Initial Purchaser, (i) as soon as available, a copy of each
report or other document furnished to the Commission or mailed to its
shareholders and (ii) from time to time, such other information
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concerning the Company as the Initial Purchaser may reasonably request.
(e) During the period of two years after the Closing Date, the
Company will, upon request, furnish to the Initial Purchaser and any holder of
Offered Securities a copy of the restrictions on transfer applicable to the
Offered Securities.
(f) During the period of two years after the Closing Date or, if
earlier, until such time as the Offered Securities are no longer restricted
securities (as defined in Rule 144 under the Securities Act), the Company will
not, and will not permit any of its affiliates (as defined in Rule 144 under the
Securities Act) to, resell any of the Offered Securities that have been
reacquired by any of them.
(g) During the period of two years after the Closing Date or, if
earlier, until such time as the Offered Securities are no longer restricted
securities (as defined in Rule 144 under the Securities Act), the Company will
not be or become and will not permit any Subsidiary Guarantor to be or become,
an open-end investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act, and will not be or become and will not permit any
Subsidiary Guarantor to be or become, a closed-end investment company required
to be registered, but not registered, under the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance
of its obligations under the Operative Documents, including (i) the fees and
expenses of the Trustee and its professional advisers, (ii) all expenses in
connection with the execution, issue, authentication, packaging and initial
delivery of the Offered Securities, the preparation and printing of the Offered
Securities, the Operative Documents, the Offering Document and amendments and
supplements thereto, and any other document relating to the issuance, offer,
sale and delivery of the Offered Securities and (iii) the cost of qualifying the
Offered
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Securities for trading in the Private Offerings, Resale and Trading through
Automated Linkages (PORTAL) Market and any expenses incidental thereto. The
Company will also pay or reimburse the Initial Purchaser (to the extent incurred
by it) for any expenses (including fees and disbursements of counsel) incurred
in connection with qualification of the Offered Securities for sale under the
laws of such jurisdictions in the United States and Canada as the Initial
Purchaser designates and the printing of memoranda relating thereto, for any
fees charged by investment rating agencies for the rating of the Offered
Securities, for all travel expenses of the Company's officers and employees and
any other expenses of the Initial Purchaser and the Company in connection with
attending or hosting meetings with prospective purchasers of the Offered
Securities from the Initial Purchaser and for expenses incurred in distributing
the Offering Document (including any amendments and supplements thereto) to the
Initial Purchaser.
(i) In connection with the offering of the Offered Securities, until
the Initial Purchaser shall have notified the Company of the completion of the
resale of the Offered Securities, neither the Company nor any of its affiliates
has or will, either alone or with one or more other persons, bid for or purchase
for any account in which it or any of its affiliates has a beneficial interest
any Offered Securities or attempt to induce any person to purchase any Offered
Securities; and neither it nor any of its affiliates will make bids or purchases
for the purpose of creating actual, or apparent, active trading in, or of
raising the price of, the Offered Securities.
(j) For a period of 180 days after the date of the Offering
Circular, neither the Company nor any of its subsidiaries will offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly, any
United States dollar-denominated debt securities issued or guaranteed by
Holdings, the Company or any of its subsidiaries in any transaction involving a
public offering or a private placement in connection with intended resale under
Rule 144A under the Securities Act and having a
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maturity of more than three years from the date of issue, or publicly disclose
the intention to make any such offer, sale, pledge or disposal, without the
prior written consent of the Initial Purchaser. Neither Holdings, the Company
nor any of its subsidiaries will at any time offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, any securities under
circumstances where such offer, sale, pledge, contract or disposition would
cause the exemption afforded by Section 4(2) of the Securities Act or the safe
harbor of Regulation S thereunder to cease to be applicable to the offer and
sale of the Offered Securities.
(k) The Company will use its best efforts to cause the Offered
Securities to become eligible for the PORTAL trading system of the National
Association of Securities Dealers, Inc.
6. Conditions of the Obligation of the Initial Purchaser. The
obligation of the Initial Purchaser to purchase and pay for the Offered
Securities will be subject to the accuracy of the representations and warranties
on the part of the Company and the Subsidiary Guarantors herein, to the accuracy
of the statements of officers of the Company made pursuant to the provisions
hereof, to the performance by the Company and the Subsidiary Guarantors of their
obligations hereunder and to the following additional conditions precedent:
(a) The Initial Purchaser shall have received a letter, dated the
date of this Agreement, of Ernst & Young LLP, in agreed form, confirming that
they are independent public accountants within the meaning of the Securities Act
and the applicable published rules and regulations thereunder ("Rules and
Regulations") and stating to the effect that they have compared specified dollar
amounts (or percentages derived from such dollar amounts) and other financial
information contained in the Offering Document (in each case to the extent that
such dollar amounts, percentages and other financial information are derived
from the general accounting records of the Company and its subsidiaries subject
to the internal controls of the
19
Company's accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a reading of
such general accounting records and other procedures specified in such letter
and have found such dollar amounts, percentages and other financial information
to be in agreement with such results, except as otherwise specified in such
letter.
(b) The Initial Purchaser shall have received a letter, dated the
date of this Agreement, of Arthur Andersen LLP, in agreed form, setting forth
the procedures performed with respect to the pro forma financial information set
forth in Offering Document and stating to the effect that they have compared
specified dollar amounts (or percentages derived from such dollar amounts) and
other financial information contained in the Offering Document (in each case to
the extent that such dollar amounts, percentages and other financial information
are derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's accounting system
or are derived directly from such records by analysis or computation) with the
results obtained from inquiries, a reading of such general accounting records
and other procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) a change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange controls
as would, in the judgment of the Initial Purchaser, be likely to prejudice
materially the success of the proposed issue, sale or distribution of the
Offered Securities, whether in the primary market or in respect of dealings in
the secondary market, or (ii) (A) any change, or any development or event
involving a prospective change, in the condition (financial or other), business,
assets, operations, properties or results of operations of the Company or its
Subsidiaries which, in the judgment of the
20
Initial Purchaser, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the offering or the sale of and
payment for the Offered Securities, (B) any downgrading in the rating of any
debt securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Securities Act),
or any public announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating), (C) any suspension or
limitation of trading in securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market, (D) any banking moratorium declared by U.S. Federal or
New York authorities, or (E) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or any
other substantial national or international calamity or emergency if, in the
judgment of the Initial Purchaser, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the offering or sale of and payment for the Offered
Securities.
(d) The Initial Purchaser shall have received an opinion, dated the
Closing Date, of McDermott, Will & Emery, counsel for the Company and the
Subsidiary Guarantors, that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its business as
described in the Offering Document; and, based solely on a certificate of the
Secretary of State of each of the jurisdictions listed on Exhibit A hereto, the
Company is duly qualified to do business as a foreign corporation in
21
each such jurisdiction and is in good standing in each such jurisdiction as of
the date specified in such certificate;
(ii) Each Subsidiary Guarantor has been duly incorporated and
is an existing corporation in good standing under the laws of the jurisdiction
of its incorporation, with corporate power and authority to own its properties
and conduct its business as described in the Offering Document; and, based
solely on a certificate of the Secretary of State of each of the jurisdictions
listed on Exhibit A hereto, each Subsidiary Guarantor is duly qualified to do
business as a foreign corporation in each such jurisdiction and is in good
standing in each such jurisdiction as of the date specified in such certificate;
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and each Subsidiary Guarantor and constitutes a valid
and legally binding obligation of the Company and of each Subsidiary Guarantor,
enforceable against the Company and each Subsidiary Guarantor in accordance with
its terms, subject to the following qualifications:
(A) enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general principles of equity (regardless of
whether enforcement is sought in equity or at law); and
(B) we express no opinion as to: the enforceability of
any rights to contribution or indemnification provided for in the Operative
Documents which are violative of the public policy underlying any law, rule or
regulation (including any federal or state securities law, rule or regulation).
(iv) The Guaranty has been duly authorized, executed and
delivered by each Subsidiary Guarantor.
22
(v) This Agreement has been duly authorized, executed and
delivered by the Company and each Subsidiary Guarantor.
(vi) The Offered Securities have been duly authorized by the
Company and, when authenticated in accordance with the provisions of the
Indenture and delivered and paid for pursuant to the terms of this Agreement on
the Closing Date, will have been duly executed, issued and delivered by the
Company and will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with their terms and
entitled to the benefit of the Indenture, subject to the following
qualifications:
(A) enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general principles of equity (regardless of
whether enforcement is sought in equity or at law); and
(B) we express no opinion as to: the enforceability of
any rights to contribution or indemnification provided for in the Operative
Documents which are violative of the public policy underlying any law, rule or
regulation (including any federal or state securities law, rule or regulation).
(vii) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and the Subsidiary Guarantors
and conforms in all material respects to the description thereof contained in
the Offering Document. The Registration Rights Agreement constitutes a valid and
legally binding obligation of each of the Company and the Subsidiary Guarantors,
enforceable against the Company and each Subsidiary Guarantor in accordance with
its terms, subject to the following qualifications:
(A) enforcement may be limited by applicable bankruptcy,
insolvency, reorganization,
23
moratorium or other similar laws affecting creditors' rights generally and by
general principles of equity (regardless of whether enforcement is sought in
equity or at law); and
(B) we express no opinion as to: the enforceability of
any rights to contribution or indemnification provided for in the Operative
Documents which are violative of the public policy underlying any law, rule or
regulation (including any federal or state securities law, rule or regulation).
(viii) The Recapitalization Agreement has been duly
authorized, executed and delivered by Holdings and conforms in all material
respects to the descriptions thereof in the Offering Document.
(ix) The Offered Securities and the Guaranty conform in all
material respects to the description thereof contained in the Offering Document.
(x) To the best of such counsel's knowledge, no consent,
approval authorization, or order of, or filing with, any governmental agency or
body or any court, which has not been obtained or taken and is not in full force
and effect and which is, in the experience of such counsel, normally applicable
to transactions of the type contemplated by the Operative Documents, is required
for the consummation of the transactions contemplated by the Operative Documents
or in connection with the issuance and sale of the Offered Securities (including
the Guaranty) by the Company or the Subsidiary Guarantors, other than (A) as may
be required under the Securities Act and the Rules and Regulations of the
Commission thereunder with respect to the Registration Rights Agreement and the
transactions contemplated thereunder, (B) such as may be required by state
securities or blue sky laws in connection with the offer and sale of the Offered
Securities and (C) filings required under the New Jersey Industrial Site
Recovery Act and the Connecticut Transfer Act.
24
(xi) The execution, delivery and performance of the Operative
Documents and the issuance and sale of the Offered Securities and compliance by
the Company and the Subsidiary Guarantors with the terms and provisions thereof,
will not result in a breach or violation of any of the terms and provisions of,
or constitute a default under, (A) any statute, rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of their
properties which is, in the experience of such counsel, normally applicable to
transactions of the type contemplated by the Operative Documents, (B) any
agreement or instrument to which the Company or any such subsidiary is a party
or by which the Company or any such subsidiary is bound or to which any of the
properties of the Company or any such Subsidiary Guarantor is subject that is
set forth in the officer's certificate of the Company attached hereto as Exhibit
A or (C) the charter or by-laws of the Company or any such subsidiary; and the
Company and the Subsidiary Guarantors have full power and authority to
authorize, issue and sell the Offered Securities (including the Guaranty) as
contemplated by this Agreement.
(xii) Except as disclosed in the Offering Document, to the
best of our knowledge, there are no pending actions, suits or proceedings
against or affecting the Company, any of its subsidiaries or any of their
respective properties that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material Adverse
Effect, or would materially and adversely affect the ability of the Company to
perform its obligations under any of the Operative Documents or which are
otherwise material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are threatened or, to the Company's
knowledge, contemplated.
(xiii) Assuming the accuracy of the representations of the
Company contained in Section 2(w) and of the Subsidiary Guarantors and the
Initial Purchaser
25
contained in this Agreement, and assuming compliance by the Initial Purchaser
with its obligations under this Agreement, the issuance and sale of the Offered
Securities and the Guaranty to you, and the offering, resale and delivery by you
of the Offered Securities and Guaranty, in each case in the manner contemplated
by this Agreement, will be exempt from the registration requirements of the
Securities Act, and it is not necessary to qualify the Indenture under the Trust
Indenture Act of 1939, as amended.
(xiv) Neither the Company nor any Subsidiary Guarantor is and,
after giving effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the Offering Circular, none
of them will be an "investment company" as defined in the Investment Company
Act.
(xv) Additionally, such counsel shall state that such counsel
has participated in conferences with officers and other representatives of the
Company and the Subsidiary Guarantors, representatives of the independent public
accountants for the Company and the Subsidiary Guarantors and representatives
and counsel for the Initial Purchaser at which the contents of the Offering
Circular were discussed, and although such counsel is not passing upon, and is
not assuming any responsibility for, the accuracy, completeness or fairness of
the statements contained in the Offering Circular and has not and will not make
any independent check or verification thereof, on the basis of the foregoing, no
facts have come to such counsel's attention that will have led such counsel to
believe that the Offering Circular (other than the historical and pro forma
financial statements and notes thereto and other financial data included therein
or omitted therefrom, as to which such counsel will express no opinion), as of
the date of the Offering Circular, contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein not misleading.
(e) The Initial Purchaser shall have received from Cravath, Swaine &
Moore, counsel for the Initial
26
Purchaser, such opinion or opinions, dated the Closing Date, with respect to the
incorporation of the Company and the Subsidiary Guarantors, the validity of the
Offered Securities, the Offering Document, the exemption from registration for
the offer and sale of the Offered Securities by the Company to the Initial
Purchaser and the resales by it as contemplated hereby and other related matters
as the Initial Purchaser may require, and the Company shall have furnished to
such counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(f) The Initial Purchaser shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, in their
capacity as such officers, on behalf of the Company and the Subsidiary
Guarantors, shall state that the representations and warranties of the Company
and the Subsidiary Guarantors in this Agreement are true and correct, that the
Company and the Subsidiary Guarantors have complied with all agreements and
satisfied all conditions on their part to be performed or satisfied hereunder at
or prior to the Closing Date, and that, subsequent to the date of the most
recent financial statements in the Offering Document there has been no material
adverse change, nor any development or event involving a prospective material
adverse change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a whole
except as set forth in or contemplated by the Offering Document or as described
in such certificate.
(g) The Initial Purchaser shall have received letters, dated the
Closing Date, of Ernst & Young LLP and Arthur Andersen LLP which meets the
requirements of subsection (a) of this Section, except that the procedures
specified in such subsection will be conducted to a date not more than five days
prior to the Closing Date for the purposes of this subsection.
27
(h) Concurrently with the issue and sale of the Offered Securities
by the Company, the transactions contemplated by the Recapitalization Agreement,
including the issuance of the Units and the Company's contemporaneous borrowing
under a new credit facility, shall be consummated on terms that conform in all
material respects to the description thereof in the Offering Document; and the
Initial Purchaser shall have received true and correct copies of all documents
pertaining thereof and evidence reasonably satisfactory to the Initial Purchaser
of the consummation thereof.
The Company will furnish the Initial Purchaser with such conformed
copies of such opinions, certificates, letters and documents as the Initial
Purchaser may reasonably request.
7. Indemnification and Contribution. (a) The Company and the
Subsidiary Guarantors will, jointly and severally, indemnify and hold harmless
the Initial Purchaser against any losses, claims, damages or liabilities (or
actions in respect thereof) to which the Initial Purchaser may become subject,
under the Securities Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Offering Document, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
and will reimburse the Initial Purchaser for any legal or other expenses
reasonably incurred by the Initial Purchaser in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon
28
and in conformity with written information furnished to the Company by the
Initial Purchaser specifically for use therein, it being understood and agreed
that the only such information consists of the information described as such in
subsection (b) below; provided further, that with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
any preliminary offering circular the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of the Initial Purchaser if the
Initial Purchaser sold the Offered Securities concerned to the person asserting
any such losses, claims, damages or liabilities, to the extent that such sale
was an initial resale by the Initial Purchaser and any such loss, claim, damage
or liability of the Initial Purchaser results from the fact that there was not
sent or given to such person, at or prior to the written confirmation of the
sale of such Offered Securities to such person, a copy of the Offering Document
(exclusive of any material included therein but not attached thereto) if the
Company had previously furnished copies thereof to the Initial Purchaser.
(b) The Initial Purchaser will indemnify and hold harmless the
Company and each Subsidiary Guarantor against any losses, claims, damages or
liabilities (or actions in respect thereof), joint or several, to which the
Company or any such Subsidiary Guarantor may become subject, under the
Securities Act or the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Offering Document, or any amendment or supplement thereto, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by the
Initial Purchaser
29
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Company or any such Subsidiary Guarantor in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by the Initial Purchaser
consists of the following information in the Offering Document furnished on
behalf of the Initial Purchaser: the last paragraph at the bottom of the cover
page concerning the terms of the offering of the Offered Securities by the
Initial Purchaser and the legend concerning over-allotments on page 4 and the
fourth paragraph, the seventh paragraph and the second sentence of the sixth
paragraph under the caption "Plan of Distribution".
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior
30
written consent of the indemnified party, effect any settlement of any pending
or threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages, liabilities or actions referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Subsidiary Guarantors on the one hand and the
Initial Purchaser on the other from the offering of the Offered Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Subsidiary Guarantors on the one hand and the Initial
Purchaser on the other in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or actions as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Subsidiary Guarantors on the one hand and the Initial Purchaser
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Offered Securities (before deducting expenses)
received by the Company bear to the total discounts and commissions received by
the Initial Purchaser from the Company under this Agreement. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company and the
Subsidiary Guarantors or the Initial Purchaser and the
31
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages, liabilities or
actions referred to in the first sentence of this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), the Initial Purchaser shall not be required to contribute any
amount in excess of the amount by which the total price at which the Offered
Securities purchased by it were resold exceeds the amount of any damages which
the Initial Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
(e) The obligations of the Company and the Subsidiary Guarantors
under this Section shall be in addition to any liability which the Company and
the Subsidiary Guarantors may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls the Initial Purchaser
within the meaning of the Securities Act or the Exchange Act; and the
obligations of the Initial Purchaser under this Section shall be in addition to
any liability which the Initial Purchaser may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Company and the Subsidiary Guarantors within the meaning of the Securities Act
or the Exchange Act.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, the Subsidiary Guarantors or their officers and of
the Initial Purchaser set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of the Initial Purchaser, the
Company, the Subsidiary Guarantors or any of their respective representatives,
officers or directors or any
32
controlling person, and will survive delivery of and payment for the Offered
Securities. If for any reason the purchase of the Offered Securities by the
Initial Purchaser is not consummated, the Company shall remain responsible for
the expenses to be paid or reimbursed by it pursuant to Section 5 and the
respective obligations of the Company, the Subsidiary Guarantors and the Initial
Purchaser pursuant to Section 7 shall remain in effect. With respect to fees and
expenses, the Amended and Restated Engagement Letter dated May 1, 1997, between
the Company and the Initial Purchaser shall not be superseded by this Agreement.
9. Notices. All communications hereunder will be in writing and, if
sent to the Initial Purchaser will be mailed, delivered or telegraphed and
confirmed to the Initial Purchaser at Eleven Madison Avenue, New York, NY 10010,
Attention: Investment Banking Department-Transactions Advisory Group, or, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
it at 60 Round Hill Road, P.O. Box 430, Fairfield, CT 06430-0430, Attention:
President.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Company as if such
holders were parties thereto.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
12. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to principles of conflicts of laws.
33
The Company and the Initial Purchaser hereby submit to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
If the foregoing is in accordance with the Initial Purchaser's
understanding of our agreement, kindly sign and
34
return to us one of the counterparts hereof, whereupon it will become a binding
agreement between the Company, the Subsidiary Guarantors and the Initial
Purchaser in accordance with its terms.
Very truly yours,
ROLLER BEARING COMPANY OF
AMERICA, INC.
By............................
Name:
Title:
INDUSTRIAL TECTONICS BEARINGS
CORPORATION
By............................
Name:
Title:
RBC LINEAR PRECISION PRODUCTS,
INC.
By.............................
Name:
Title:
35
RBC NICE BEARINGS, INC.
By.............................
Name:
Title:
The foregoing Purchase Agreement is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON
CORPORATION
By............................
Name:
Title: