Execution Version 1.1
$50,000,000
DURA OPERATING CORP.
8 5/8% Senior Notes due 2012
Purchase Agreement
October 29, 2003
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Banc of America Securities LLC
Comerica Securities, Inc.
Scotia Capital (USA) Inc.
Wachovia Capital Markets, LLC
Barclays Capital Inc.
ABN AMRO Incorporated
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen
Dura Operating Corp., a Delaware corporation (the "Company"), proposes
to issue and sell to the several Initial Purchasers listed in Schedule 1 hereto
(the "Initial Purchasers"), for whom ▇.▇. ▇▇▇▇▇▇ Securities Inc. is acting as
representative (the "Representative"), $50,000,000 principal amount of its
8 5/8% Senior Notes due 2012 (the "Securities"). The Securities will be issued
pursuant to the Indenture dated as of April 18, 2002, as amended by a
Supplemental Indenture, dated as of November 4, 2003 (the "Indenture") among the
Company, the guarantors listed in Schedule 2 hereto (the "Guarantors") and BNY
Midwest Trust Company, as trustee (the "Trustee"), and will be guaranteed on an
unsecured senior basis by each of the Guarantors and any subsidiary of the
Company formed or acquired after the Closing Date (as defined below) that
executes an additional guaranty (the "Guarantees") in accordance with the terms
of the Indenture, and their respective successors and assigns.
The Securities will be sold to the Initial Purchasers without being
registered under the Securities Act of 1933, as amended (the "Securities Act"),
in reliance upon one or more exemptions therefrom. The Company has prepared a
preliminary offering memorandum dated October 28, 2003 (the "Preliminary
Offering Memorandum") and will prepare an offering memorandum dated the date
hereof (the "Offering Memorandum") setting forth information concerning the
Company and the Securities. Copies of the Preliminary Offering Memorandum have
been, and copies of the Offering
Memorandum will be, delivered by the Company to the Initial Purchasers pursuant
to the terms of this Agreement. The Company hereby confirms that it has
authorized the use of the Preliminary Offering Memorandum and the Offering
Memorandum in connection with the offering and resale of the Securities by the
Initial Purchasers in the manner contemplated by this Agreement. Capitalized
terms used but not defined herein shall have the meanings given to such terms in
the Offering Memorandum. References herein to the Preliminary Offering
Memorandum and the Offering Memorandum shall be deemed to refer to and include
any document incorporated by reference therein.
Holders of the Securities (including the Initial Purchasers and their
direct and indirect transferees) will be entitled to the benefits of a
Registration Rights Agreement, to be dated as of the Closing Date (as defined
below) and substantially in the form attached hereto as Exhibit A (the
"Registration Rights Agreement"), pursuant to which the Company and the
Guarantors will agree to file one or more registration statements with the
Securities and Exchange Commission (the "Commission") providing for the
registration under the Securities Act of the Securities or the Exchange
Securities (as defined below).
The Company hereby confirms its agreement with the several Initial
Purchasers concerning the purchase and resale of the Securities, as follows:
1. Purchase and Resale of the Securities. (a) The Company agrees
to issue and sell the Securities to the several Initial Purchasers as provided
in this Agreement, and each Initial Purchaser, on the basis of the
representations, warranties and agreements set forth herein and subject to the
conditions set forth herein, agrees, severally and not jointly, to purchase from
the Company the respective principal amount of Securities set forth opposite
such Initial Purchaser's name in Schedule 1 hereto at a price equal to 98% of
the principal amount thereof plus accrued interest, if any, from October 15,
2003 to the Closing Date. The Company will not be obligated to deliver any of
the Securities except upon payment for all the Securities to be purchased as
provided herein.
(b) The Company understands that the Initial Purchasers intend to
offer the Securities for resale on the terms set forth in the Offering
Memorandum. Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) it is a qualified institutional buyer within the
meaning of Rule 144A under the Securities Act (a "QIB") and an
accredited investor within the meaning of Rule 501(a) under the
Securities Act;
(ii) it has not solicited offers for, or offered or sold,
and will not solicit offers for, or offer or sell, the Securities by
means of any form of general solicitation or general advertising within
the meaning of Rule 502(c) of Regulation D under the Securities Act
("Regulation D") or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act; and
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(iii) it has not solicited offers for, or offered or sold,
and will not solicit offers for, or offer or sell, the Securities as
part of their initial offering except:
(A) within the United States to persons whom it
reasonably believes to be QIBs in transactions pursuant to
Rule 144A under the Securities Act ("Rule 144A") and in
connection with each such sale, it has taken or will take
reasonable steps to ensure that the purchaser of the
Securities is aware that such sale is being made in reliance
on Rule 144A; or
(B) in accordance with the restrictions set
forth in Annex A hereto.
(c) Each Initial Purchaser acknowledges and agrees that the
Company and, for purposes of the opinions to be delivered to the Initial
Purchasers pursuant to Sections 5(g) and 5(i), counsel for the Company and
counsel for the Initial Purchasers, respectively, may rely upon the accuracy of
the representations and warranties of the Initial Purchasers, and compliance by
the Initial Purchasers with their agreements, contained in paragraph (b) above
(including Annex A hereto), and each Initial Purchaser hereby consents to such
reliance.
(d) The Company acknowledges and agrees that the Initial
Purchasers may offer and sell Securities to or through any affiliate of an
Initial Purchaser and that any such affiliate may offer and sell Securities
purchased by it to or through any Initial Purchaser; provided that any such
offers or sales shall be made in accordance with the provisions of this
Agreement.
2. Payment and Delivery. (a) Payment for and delivery of the
Securities will be made at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 10:00 A.M., New York City time, on
November 4, 2003, or at such other time or place on the same or such other date,
not later than the fifth business day thereafter, as the Representative and the
Company may agree upon in writing. The time and date of such payment and
delivery is referred to herein as the "Closing Date".
(b) Payment for the Securities shall be made by wire transfer in
immediately available funds to the account(s) specified by the Company to the
Representative against delivery to the nominee of The Depository Trust Company,
for the account of the Initial Purchasers, of one or more global notes
representing the Securities (collectively, the "Global Note"), with any transfer
taxes payable in connection with the sale of the Securities duly paid by the
Company. The Global Note will be made available for inspection by the
Representative not later than 1:00 P.M., New York City time, on the business day
prior to the Closing Date.
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3. Representations and Warranties of the Company and the
Guarantors. The Company and the Guarantors, jointly and severally, hereby
represent, warrant and covenant to each Initial Purchaser as follows:
(a) No Registration Required. Subject to compliance by the Initial
Purchasers with the representations and warranties set forth in Section 1(b)
hereof (including Annex A hereto) and with the procedures set forth therein, it
is not necessary in connection with the offer, sale and delivery of the
Securities to the Initial Purchasers and to each subsequent purchaser in the
manner contemplated by this Agreement and the Offering Memorandum to register
the Securities under the Securities Act or to qualify the Indenture under the
Trust Indenture Act.
(b) No Integration of Offerings or General Solicitation. The
Company has not, directly or indirectly, solicited any offer to buy or offered
to sell, and will not, directly or indirectly, solicit any offer to buy or offer
to sell, in the United States or to any United States citizen or resident, any
security which is or would be integrated with the sale of the Securities in a
manner that would require the Securities to be registered under the Securities
Act. None of the Company, its affiliates (as such term is defined in Rule 501(b)
under the Securities Act (each, an "Affiliate")), or, to the Company's
knowledge, any person acting on its or any of their behalf (other than the
Initial Purchasers, as to whom the Company makes no representation or warranty)
has engaged or will engage, in connection with the offering of the Securities,
in any form of general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act. With respect to those Securities sold in
reliance upon Regulation S under the Securities Act ("Regulation S"), (i) none
of the Company, its Affiliates or, to the Company's knowledge, any person acting
on its or their behalf (other than the Initial Purchasers, as to whom the
Company makes no representation or warranty) has engaged or will engage in any
directed selling efforts within the meaning of Regulation S and (ii) each of the
Company and its Affiliates and, to the Company's knowledge, any person acting on
its or their behalf (other than the Initial Purchasers, as to whom the Company
makes no representation or warranty) has complied and will comply with the
offering restrictions set forth in Regulation S.
(c) Eligibility for Resale under Rule 144A. The Securities are
eligible for resale pursuant to Rule 144A and will not be, at the Closing Date,
of the same class as securities listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in a U.S. automated
interdealer quotation system.
(d) The Offering Memorandum. The Offering Memorandum will not, as
of the date it bears, and at the Closing Date, include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that this representation, warranty and agreement
shall not apply to statements in or omissions from the Offering Memorandum made
in reliance upon, and in conformity with, information furnished to the Company
in writing by any Initial Purchaser through the Representative expressly for use
in the Offering Memorandum, it being acknowledged and agreed that the
information furnished to the Company for this
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purpose is exclusively comprised of the statements concerning the Initial
Purchasers contained in the "Summary" in the sixth sentence under the heading
"Transfer restrictions; absence of public market for the notes", in "Risk
factors" in the third sentence of the first paragraph under the heading "There
is no public market for the notes, and we cannot assure you that a market for
the notes will develop or that you will be able to sell your notes or, if
issued, the exchange notes" and in the third, seventh and ninth paragraphs,
under the heading "Plan of Distribution", and with respect to each Initial
Purchaser, such Initial Purchaser's name as it appears on the front cover. The
Offering Memorandum, as of its date, will contain all the information specified
in, and meeting the requirements of, Rule 144A(d)(4). The Company has not
distributed and will not distribute, prior to the later of the Closing Date and
the completion of the Initial Purchasers' distribution of the Securities, any
offering material in connection with the offering and sale of the Securities
other than the Offering Memorandum.
(e) Incorporated Documents. The Offering Memorandum will
incorporate by reference the Annual Report on Form 10-K of Dura Automotive
Systems, Inc. ("DASI") for the fiscal year ended December 31, 2002 (the "Annual
Report"), and all documents filed by DASI with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after December 31, 2002.
The documents incorporated or deemed to be incorporated by reference in the
Offering Memorandum at the time they were or hereafter are filed with the
Commission (collectively, the "Incorporated Documents") complied and will comply
in all material respects with the requirements of the Exchange Act.
(f) The Purchase Agreement. This Agreement has been duly
authorized, executed and delivered by, and is a valid and binding agreement of,
the Company and the Guarantors, enforceable in accordance with its terms, except
as the enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles and except
as rights to indemnification hereunder may be limited by applicable law.
(g) The Registration Rights Agreement and DTC Letter of
Representations. At the Closing Date, each of the Registration Rights Agreement
and the DTC Letter of Representations, to be dated as of the Closing Date (the
"DTC Letter of Representations"), will be duly authorized, executed and
delivered by, and will be a valid and binding agreement of, the Company and the
Guarantors, enforceable in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the rights and remedies of creditors
or by general equitable principles and except as rights to indemnification under
the Registration Rights Agreement may be limited by applicable law. Pursuant to
the Registration Rights Agreement, the Company will agree to file with the
Commission, under the circumstances set forth therein, (i) a registration
statement under the Securities Act relating to another series of debt securities
of the Company with terms substantially identical to the Securities (the
"Exchange Securities") to be offered in exchange for the Securities and another
series of guarantees of the Guarantors with terms substantially identical to the
Guarantees (the
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"Exchange Guarantees") to be offered in exchange for the Guarantees (the
"Exchange Offer"), and (ii) to the extent required by the Registration Rights
Agreement, a shelf registration statement pursuant to Rule 415 of the Securities
Act relating to the resale by certain holders of the Securities, as the case may
be, and in each case, to use its reasonable best efforts to cause such
registration statements to be declared effective.
(h) Authorization of the Securities, the Exchange Securities, the
Guarantees and the Exchange Guarantees. (i) The Securities to be purchased by
the Initial Purchasers from the Company are in the form contemplated by the
Indenture, have been duly authorized for issuance and sale pursuant to this
Agreement and the Indenture and, at the Closing Date, will have been duly
executed by the Company and, when authenticated in the manner provided for in
the Indenture and delivered against payment of the purchase price therefor, will
constitute valid and binding agreements of the Company enforceable in accordance
with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general
equitable principles and will be entitled to the benefits of the Indenture. (ii)
The Exchange Securities have been duly and validly authorized for issuance by
the Company, and when issued and authenticated in accordance with the terms of
the Indenture, the Registration Rights Agreement and the Exchange Offer, will
constitute valid and binding obligations of the Company enforceable in
accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to
or affecting enforcement of the rights and remedies of creditors or by general
principles of equity and will be entitled to the benefits of the Indenture.
(iii) The Guarantees have been duly and validly authorized for issuance pursuant
to this Agreement and the Indenture and, at the Closing Date, the Guarantees
will have been duly executed by each of the applicable Guarantors and, when the
Securities have been authenticated in the manner provided for in the Indenture
and delivered against payment of the purchase price therefor, will constitute
valid and binding agreements of the Guarantors, enforceable in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable
principles and will be entitled to the benefits of the Indenture. (iv) The
Exchange Guarantees have been duly and validly authorized for issuance by the
Guarantors, and when issued pursuant to the Indenture, the Registration Rights
Agreement and the Exchange Offer, will constitute valid and binding agreements
of the Guarantors, enforceable in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles and will be entitled to
the benefits of the Indenture.
(i) Authorization of the Indenture. The Indenture has been duly
authorized, executed and delivered by the Company and the Guarantors and
constitutes a valid and binding agreement of the Company and the Guarantors,
enforceable in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency,
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reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles.
(j) Description of the Securities, the Guarantees and the
Indenture. The Securities, the Exchange Securities, the Guarantees, the Exchange
Guarantees Securities and the Indenture will conform in all material respects to
the respective statements relating thereto contained in the Offering Memorandum.
(k) No Material Adverse Change. Except as otherwise disclosed in
the Offering Memorandum, subsequent to the respective dates as of which
information is given in the Offering Memorandum: (i) there has been no material
adverse change, or any development that could reasonably be expected to result
in a material adverse change, in the financial condition, or in the earnings,
business, operations or prospects, whether or not arising from transactions in
the ordinary course of business, of DASI and its subsidiaries, considered as one
entity (any such change, a "Material Adverse Change"); (ii) DASI and its
subsidiaries, considered as one entity, have not incurred any material liability
or obligation, indirect, direct or contingent, not in the ordinary course of
business nor entered into any material transaction or agreement not in the
ordinary course of business, other than under that certain Amended and Restated
Credit Agreement, dated as of March 19, 1999, as amended and restated on or
about the date hereof, among DASI, the Company, the subsidiaries of the Company
party thereto, the lenders party thereto, JPMorgan Chase Bank, as administrative
agent, and Bank of America, N.A., as syndication agent (the "Credit Agreement")
and the documents related thereto; and (iii) there has been no dividend or
distribution of any kind declared, paid or made by DASI or, except for dividends
paid to DASI or any of its subsidiaries, any of its subsidiaries on any class of
capital stock or repurchase or redemption by DASI or any of its subsidiaries of
any class of capital stock.
(l) Independent Accountants. Deloitte & Touche LLP, who have
expressed their opinion with respect to the financial statements (which term as
used in this Agreement includes the related notes thereto) of DASI incorporated
by reference in the Offering Memorandum, are independent public or certified
public accountants within the meaning of Regulation S-X under the Securities Act
and the Exchange Act.
(m) Preparation of the Financial Statements. The financial
statements of DASI, together with the related notes, incorporated by reference
in the Offering Memorandum present fairly, in all material respects, the
consolidated financial position of DASI and its subsidiaries as of and at the
dates indicated and the results of their operations and cash flows for the
periods specified. Such financial statements of DASI have been prepared in
conformity with generally accepted accounting principles as applied in the
United States applied on a consistent basis throughout the periods involved,
except as may be expressly stated in the related notes thereto. The historical
financial data set forth in the Offering Memorandum under the captions
"Summary--Summary consolidated financial data" and in DASI's Annual Report under
the caption "Selected Financial Data" fairly present, in all material respects,
the information set forth therein on a basis consistent with that of the audited
financial statements incorporated by reference in the Offering Memorandum.
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(n) Organization and Good Standing of the Company and its
Subsidiaries. Each of the Company, the Guarantors and each other significant
subsidiary of the Company has been duly incorporated or formed and is validly
existing in good standing under the laws of the jurisdiction of its organization
and has power and authority to own, lease and operate its properties and to
conduct its business as described in the Offering Memorandum and, in the case of
the Company and the Guarantors, to enter into and perform, as applicable, their
respective obligations under each of this Agreement, the Registration Rights
Agreement, the DTC Letter of Representations, the Securities, the Exchange
Securities, the Guarantees, the Exchange Guarantees and the Indenture. Each of
the Company, the Guarantors and each other significant subsidiary of the Company
is duly qualified as a foreign corporation or other entity to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except for such jurisdictions where the failure to so
qualify or to be in good standing would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Change. All of the issued
and outstanding capital stock of the Guarantors and each other significant
subsidiary of the Company that is, in each case, a corporation has been duly
authorized and validly issued, is fully paid and nonassessable and (other than
the capital stock of DASI) is owned by the Company, directly, or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim (other than those granted under the Credit Agreement, set
forth in the Offering Memorandum and such other security interest, mortgage,
pledge, lien, encumbrance or claim that would not reasonably be expected to
result in a Material Adverse Change). Except as set forth on Schedule 3, DASI
does not own or control, directly or indirectly, any corporation, association or
other entity other than the subsidiaries listed in Exhibit 21.1 to DASI's Annual
Report.
(o) Capitalization and Other Capital Stock Matters. At June 30,
2003, on a consolidated basis, after giving pro forma effect to the issuance and
sale of the Securities pursuant hereto and the other pro forma adjustments
described in the Offering Memorandum, DASI would have an authorized and
outstanding capitalization as set forth in the Offering Memorandum under the
caption "Capitalization" (other than for subsequent issuances of capital stock,
if any, pursuant to employee benefit plans incorporated by reference in the
Offering Memorandum or upon exercise of outstanding options described in the
Offering Memorandum). All of the outstanding shares of common stock of DASI, par
value $.01 per share (the "Common Stock"), have been duly authorized and validly
issued, are fully paid and nonassessable and have been issued in compliance with
federal and state securities laws. None of the outstanding shares of Common
Stock were issued in violation of any preemptive rights, rights of first refusal
or other similar rights to subscribe for or purchase securities of DASI or the
Company.
(p) Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. Neither the Company nor any of the
Guarantors or any other significant subsidiary of the Company is in violation of
its charter or by-laws or is in default (or, with the giving of notice or lapse
of time, would be in default) ("Default") under any indenture, mortgage, loan or
credit agreement, note, contract, franchise, lease
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or other instrument to which the Company, the Guarantors or any other
significant subsidiary of the Company is a party or by which it or any of them
may be bound (including, without limitation, the Company's existing senior
credit facility), or to which any of the property or assets of the Company, the
Guarantors or any of the Company's significant subsidiaries is subject (each, an
"Existing Instrument"), except for such Defaults as would not, individually or
in the aggregate, reasonably be expected to result in a Material Adverse Change.
The Company's and the Guarantors' execution, delivery and performance, as
applicable, of this Agreement, the Registration Rights Agreement, the DTC Letter
of Representations and the Indenture, and the issuance and delivery of the
Securities, the Exchange Securities, the Guarantees or the Exchange Guarantees,
and consummation of the transactions contemplated hereby and thereby and by the
Offering Memorandum (i) have been duly authorized by all necessary action and
will not result in any violation of the provisions of the charter or by-laws of
the Company, the Guarantors or any other significant subsidiary of the Company,
(ii) will not conflict with or constitute a breach of, or Default under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company, the Guarantors or any other significant
subsidiary of the Company pursuant to, or require the consent of any other party
to, any Existing Instrument, except for such conflicts, breaches, Defaults,
liens, charges or encumbrances as would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Change and (iii) will not
result in any violation of any law, administrative regulation or administrative
or court decree applicable to the Company, the Guarantors or any subsidiary of
the Company, except such violations of law, administrative regulation or
administrative or court decree that would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Change. No consent,
approval, authorization or other order of, or registration or filing with, any
court or other governmental or regulatory authority or agency, is required for
the Company's or the Guarantors' execution, delivery and performance, as
applicable, of this Agreement, the Registration Rights Agreement, the DTC Letter
of Representations, or the Indenture, or the issuance and delivery of the
Securities, the Exchange Securities, the Guarantees or the Exchange Guarantees
or consummation of the transactions contemplated hereby and thereby and by the
Offering Memorandum, except (i) such as have been obtained or made by the
Company and are in full force and effect under the Securities Act, applicable
state securities or Blue Sky laws or (ii) such as may be required by federal and
state securities laws with respect to the Company's obligations under the
Registration Rights Agreement.
(q) No Material Actions or Proceedings. Except as otherwise
disclosed in the Offering Memorandum, there are no legal or governmental
actions, suits or proceedings pending or, to the best of the Company's
knowledge, threatened (i) against or affecting the Company, the Guarantors or
any other of the Company's significant subsidiaries or (ii) which has as the
subject thereof any property owned or leased by, the Company, the Guarantors or
any other significant subsidiaries of the Company, where in any such case (A)
there is a reasonable possibility that such action, suit or proceeding might be
determined adversely to the Company, the Guarantors or such significant
subsidiary of the Company and (B) any such action, suit or proceeding, if so
determined adversely, would reasonably be expected to result in a Material
Adverse Change or
9
adversely affect the consummation of the transactions contemplated by this
Agreement. No material labor dispute with the employees of the Company, the
Guarantors or any other significant subsidiary of the Company, exists or, to the
best of the Company's knowledge, is threatened or imminent.
(r) Intellectual Property Rights. The Company and its subsidiaries
own or possess those trademarks, trade names, patent rights, copyrights,
licenses, approvals, trade secrets and other similar rights (collectively,
"Intellectual Property Rights") that are material to the conduct of their
businesses as now conducted; and the expected expiration of any of such
Intellectual Property Rights would not reasonably be expected to result in a
Material Adverse Change. Neither the Company nor any of its subsidiaries has
received any notice of infringement or conflict with asserted Intellectual
Property Rights of others, which infringement or conflict, if the subject of an
unfavorable decision, would reasonably be expected to result in a Material
Adverse Change.
(s) All Necessary Permits, etc. Except as otherwise disclosed in
the Offering Memorandum, the Company, the Guarantors and each other significant
subsidiary of the Company possess all material certificates, authorizations or
permits necessary to conduct their respective businesses, and neither the
Company, the Guarantors nor any other subsidiary of the Company has received any
notice of proceedings relating to the revocation or modification of, or
non-compliance with, any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, could reasonably be expected to result in a Material Adverse Change.
(t) Title to Properties. DASI and each of its subsidiaries has
good and marketable title to all the properties and assets reflected as owned in
the financial statements referred to in Section 3(m) above (or elsewhere in the
Offering Memorandum), in each case free and clear of any security interests,
mortgages, liens, encumbrances, equities, claims and other defects, except as
otherwise disclosed in the Offering Memorandum or such as do not materially
interfere with the use made or proposed to be made of such property by DASI or
such subsidiary. The real property, improvements, equipment and personal
property held under lease by DASI or any subsidiary are held under valid and
enforceable leases, with such exceptions as are not material and do not
materially interfere with the use made or proposed to be made of such real
property, improvements, equipment or personal property by DASI or such
subsidiary.
(u) Tax Law Compliance. DASI and its consolidated subsidiaries
have filed all material federal, state and foreign income and franchise tax
returns and have paid all material taxes required to be paid by any of them and,
if due and payable, any related or similar assessment, fine or penalty levied
against any of them except as may be being contested in good faith and by
appropriate proceedings. DASI has made adequate charges, accruals and reserves
in the applicable financial statements referred to in Section 3(m) above in
respect of all material federal, state and foreign income and franchise taxes
for all periods as to which the tax liability of DASI or any of its consolidated
subsidiaries has not been finally determined.
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(v) Company and Guarantors Not "Investment Companies". Neither the
Company nor any of the Guarantors is, and after receipt of payment for the
Securities will be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Investment Company Act") and each of the Company
and the Guarantors will conduct its business in a manner so that it will not
become subject to the Investment Company Act.
(w) No Price Stabilization or Manipulation. Neither the Company
nor any of the Guarantors or their subsidiaries has taken and will take,
directly or indirectly, any action designed to or that might be reasonably
expected to cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale, of the Securities.
(x) Solvency. The Company is, and immediately after the Closing
Date will be, Solvent. As used herein, the term "Solvent" means, with respect to
an entity on a particular date, that on such date (i) the fair market value of
the assets of the entity on a going concern basis is greater than the total
amount of liabilities (including contingent liabilities) of the entity, (ii) the
present fair salable value of the assets of the entity on a going concern basis
is greater than the amount that will be required to pay the probable liabilities
of the entity on its debts as they become absolute and matured, (iii) the entity
is able to realize upon its assets and pay its debts and other liabilities,
including contingent obligations, as they mature and (iv) the entity does not
have unreasonably small capital.
(y) No Unlawful Contributions or Other Payments. Except as
otherwise disclosed in the Offering Memorandum, neither DASI nor any of its
subsidiaries nor, to the best of the Company's knowledge, any employee or agent
of DASI or any subsidiary, has made any contribution or other payment to any
official of, or candidate for, any federal, state or foreign office in violation
of any law.
(z) Company's Accounting System. The Company maintains a system of
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles as applied in the United States and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(aa) Compliance with Environmental Laws. Except as otherwise
disclosed in the Offering Memorandum or as would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Change (i)
neither DASI nor any of its subsidiaries is in violation of any federal, state,
local or foreign law or regulation relating to pollution or protection of human
health or the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface
11
strata) or wildlife, including without limitation, laws and regulations relating
to emissions, discharges, releases or threatened releases of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum and petroleum products (collectively, "Materials of Environmental
Concern"), or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Materials of
Environmental Concern (collectively, "Environmental Laws"), which violation
includes, but is not limited to, noncompliance with any permits or other
governmental authorizations required for the operation of the business of DASI
or its subsidiaries under applicable Environmental Laws, or noncompliance with
the terms and conditions thereof, nor has DASI or any of its subsidiaries
received any written communication, whether from a governmental authority,
citizens group, employee or otherwise, that alleges that DASI or any of its
subsidiaries is in violation of any Environmental Law; (ii) there is no claim,
action or cause of action filed with a court or governmental authority, no
investigation with respect to which the Company has received written notice, and
no written notice by any person or entity alleging potential liability for
investigatory costs, cleanup costs, governmental responses costs, natural
resources damages, property damages, personal injuries, attorneys' fees or
penalties arising out of, based on or resulting from the presence, or release
into the environment, of any Material of Environmental Concern at any location
owned, leased or operated by DASI or any of its subsidiaries, now or in the past
(collectively, "Environmental Claims"), pending or, to the best of the Company's
knowledge, threatened against DASI or any of its subsidiaries or any person or
entity whose liability for any Environmental Claim DASI or any of its
subsidiaries has retained or assumed either contractually or by operation of
law; and (iii) to the best of the Company's knowledge, there are no past or
present actions, activities, circumstances, conditions, events or incidents,
including, without limitation, the release, emission, discharge, presence or
disposal of any Material of Environmental Concern, that reasonably could result
in a violation of any Environmental Law or form the basis of a potential
Environmental Claim against DASI or any of its subsidiaries or against any
person or entity whose liability for any Environmental Claim DASI or any of its
subsidiaries has retained or assumed either contractually or by operation of
law.
(bb) Periodic Review of Costs of Environmental Compliance. In the
ordinary course of its business, the Company conducts a periodic review of the
effect of Environmental Laws on the business, operations and properties of DASI
and its subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties). On the basis of such review and the amount of its established
reserves, the Company has reasonably concluded that such associated costs and
liabilities would not, individually or in the aggregate, reasonably be expected
to result in a Material Adverse Change.
(cc) ERISA Compliance. DASI and its subsidiaries and any "employee
benefit plan" (as defined under the Employee Retirement Income Security Act of
1974, as amended, and the regulations and published interpretations thereunder
(collectively,
12
"ERISA")) established or maintained by DASI, its subsidiaries or their "ERISA
Affiliates" (as defined below) are in compliance in all material respects with
ERISA or, if not in material compliance, would not reasonably be expected to
result in Material Adverse Change. "ERISA Affiliate" means, with respect to DASI
or a subsidiary, any member of any group of organizations described in Sections
414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended, and
the regulations and published interpretations thereunder (the "Code") of which
DASI or such subsidiary is a member. No "reportable event" (as defined under
ERISA) has occurred or is reasonably expected to occur with respect to any
"employee benefit plan" established or maintained by DASI, its subsidiaries or
any of their ERISA Affiliates. No "employee benefit plan" established or
maintained by DASI, its subsidiaries or any of their ERISA Affiliates, if such
"employee benefit plan" were terminated, would have any material "amount of
unfunded benefit liabilities" (as defined under ERISA). Neither DASI, its
subsidiaries nor any of their ERISA Affiliates has incurred or reasonably
expects to incur any material liability under (i) Title IV of ERISA with respect
to termination of, or withdrawal from, any "employee benefit plan" or (ii)
Sections 412, 4971, 4975 or 4980B of the Code. Each "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under Section 401(a) of the Code is
so qualified and nothing has occurred, whether by action or failure to act,
which would cause the loss of such qualification.
(dd) Regulation S Requirements. The Company, the Guarantors and
their respective affiliates and, to the best of their knowledge, all persons
acting on their behalf (other than the Initial Purchasers, as to whom the
Company and the Guarantors make no representation) have complied with and will
comply with the offering restrictions requirements of Regulation S in connection
with the offering of the Securities outside the United States and, in connection
therewith, the Offering Memorandum will contain the disclosure required by Rule
902(h).
(ee) Reporting. Each of the Company and the Guarantors is a
"reporting issuer" as defined in Rule 902 under the Securities Act.
Any certificate signed by an officer of the Company or the Guarantors
and delivered to the Initial Purchasers or to counsel for the Initial Purchasers
shall be deemed to be a representation and warranty by the Company to each
Initial Purchaser as to the matters set forth therein.
4. Further Agreements of the Company and the Guarantors. The
Company and, to the extent expressly referred to in the paragraphs below, each
of the Guarantors jointly and severally covenant and agree with each Initial
Purchaser that:
(a) Delivery of Copies. The Company will deliver to the Initial
Purchasers as many copies of the Preliminary Offering Memorandum and the
Offering Memorandum (including all amendments and supplements thereto) as the
Representative may reasonably request.
13
(b) Amendments or Supplements. Before making or distributing any
amendment or supplement to the Preliminary Offering Memorandum or the Offering
Memorandum or filing with the Commission any document that will be incorporated
by reference therein, the Company will furnish to the Representative and counsel
for the Initial Purchasers a copy of the proposed amendment or supplement or
document to be incorporated by reference therein for review, and will not
distribute any such proposed amendment or supplement or file any such document
with the Commission to which the Representative reasonably objects.
(c) Notice to the Representative. The Company will advise the
Representative promptly, and confirm such advice in writing, (i) of the issuance
by any governmental or regulatory authority of any order preventing or
suspending the use of the Preliminary Offering Memorandum or the Offering
Memorandum or the initiation or threatening of any proceeding for that purpose
and (ii) of the receipt by the Company of any notice with respect to any
suspension of the qualification of the Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and the Company will use its reasonable best efforts to prevent the
issuance of any such order preventing or suspending the use of the Preliminary
Offering Memorandum or the Offering Memorandum or suspending any such
qualification of the Securities and, if any such order is issued, will obtain as
soon as possible the withdrawal thereof.
(d) Ongoing Compliance of the Offering Memorandum. If at any time
prior to the completion of the initial offering of the Securities (i) any event
shall occur or condition shall exist as a result of which the Offering
Memorandum as then amended or supplemented would 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 existing when the
Offering Memorandum is delivered to a purchaser, not misleading or (ii) it is
necessary to amend or supplement the Offering Memorandum to comply with law, the
Company will immediately notify the Initial Purchasers thereof and forthwith
prepare and, subject to paragraph (b) above, furnish to the Initial Purchasers
such amendments or supplements to the Offering Memorandum (or any document to be
filed with the Commission and incorporated by reference therein) as may be
necessary so that the statements in the Offering Memorandum as so amended or
supplemented (or including such document to be incorporated by reference
therein) will not, in the light of the circumstances existing when the Offering
Memorandum is delivered to a purchaser, be misleading or so that the Offering
Memorandum will comply with law.
(e) Blue Sky Compliance. The Company will cooperate with the
Initial Purchasers to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representative shall
reasonably request and will continue such qualifications in effect so long as
required for the offering and resale of the Securities; provided that neither
the Company nor any of the Guarantors shall be required to (i) qualify as a
foreign corporation or other entity or as a dealer in securities in any such
jurisdiction where it would not otherwise be required to so qualify, (ii) file
14
any general consent to service of process in any such jurisdiction or (iii)
subject itself to taxation in any such jurisdiction if it is not otherwise so
subject.
(f) Clear Market. During the period from the date hereof through
and including the date that is 30 days after the date hereof, the Company and
each of the Guarantors will not, without the prior written consent of the
Representative, offer, sell, contract to sell or otherwise dispose of any debt
securities (other than the Securities and the Exchange Securities) issued or
guaranteed by the Company or any of the Guarantors and having a tenor of more
than one year.
(g) Use of Proceeds. The Company will apply the net proceeds from
the sale of the Securities as described in the Offering Memorandum under the
heading "Use of proceeds".
(h) Supplying Information. While the Securities remain outstanding
and are "restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Company and each of the Guarantors will, during any period
in which the Company is not subject to and in compliance with Section 13 or
15(d) of the Exchange Act, furnish to holders of the Securities and prospective
purchasers of the Securities designated by such holders, upon the request of
such holders or such prospective purchasers, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(i) PORTAL and DTC. The Company will assist the Initial Purchasers
in arranging for the Securities to be designated Private Offerings, Resales and
Trading through Automated Linkages ("PORTAL") Market securities in accordance
with the rules and regulations adopted by the National Association of Securities
Dealers, Inc. ("NASD") relating to trading in the PORTAL Market and for the
Securities to be eligible for clearance and settlement through The Depository
Trust Company ("DTC").
(j) No Resales by the Company. Until the issuance of the Exchange
Securities, 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 Securities
that have been acquired by any of them, except for Securities purchased by the
Company or any of its affiliates and resold in a transaction registered under
the Securities Act.
(k) No Integration. Neither the Company nor any of its affiliates
(as defined in Rule 501(b) of Regulation D) will, directly or through any agent,
sell, offer for sale, solicit offers to buy or otherwise negotiate in respect
of, any security (as defined in the Securities Act), that is or will be
integrated with the sale of the Securities in a manner that would require
registration of the Securities under the Securities Act.
(l) No General Solicitation or Directed Selling Efforts. None of
the Company or any of its affiliates or any other person acting on its or their
behalf (other than the Initial Purchasers, as to which no covenant is given)
will (i) solicit offers for, or offer or sell, the Securities by means of any
form of general solicitation or general advertising within the meaning of Rule
502(c) of Regulation D or in any manner
15
involving a public offering within the meaning of Section 4(2) of the Securities
Act or (ii) engage in any directed selling efforts within the meaning of
Regulation S, and all such persons will comply with the offering restrictions
requirement of Regulation S.
(m) No Stabilization. Neither the Company nor any of the
Guarantors will take, directly or indirectly, any action designed to or that
could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Securities.
5. Conditions of Initial Purchasers' Obligations. The obligation
of each Initial Purchaser to purchase Securities on the Closing Date as provided
herein is subject to the performance by the Company and each of the Guarantors
of their respective covenants and other obligations hereunder and to the
following additional conditions:
(a) Representations and Warranties. The representations and
warranties of the Company and the Guarantors contained herein shall be true and
correct on the date hereof and on and as of the Closing Date; and the statements
of the Company, the Guarantors and their respective officers made in any
certificates delivered pursuant to this Agreement shall be true and correct on
and as of the Closing Date.
(b) No Downgrade. Subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the rating accorded the
Securities or any other debt securities or preferred stock issued or guaranteed
by the Company or any of the Guarantors by any "nationally recognized
statistical rating organization", as such term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act; and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, or has changed its outlook with respect to, its rating of the Securities
or of any other debt securities or preferred stock issued or guaranteed by the
Company or any of the Guarantors (other than an announcement with positive
implications of a possible upgrading).
(c) No Material Adverse Change. Subsequent to the execution and
delivery of this Agreement, no event or condition of a type described in Section
3(k) hereof as material and adverse shall have occurred or shall exist, which
event or condition is not described in the Offering Memorandum (excluding any
amendment or supplement thereto or any document filed with the Commission after
the date hereof and incorporated by reference therein) and the effect of which
in the judgment of the Representative makes it impracticable or inadvisable to
proceed with the offering, sale or delivery of the Securities on the terms and
in the manner contemplated by this Agreement and the Offering Memorandum.
(d) Officers' Certificates. The Company and each of the Guarantors
shall have furnished to the Representative a certificate in form and substance
reasonably satisfactory to the Representative, to the effect set forth in Annex
B hereto, dated the Closing Date, of the Chief Executive Officer and Chief
Financial Officer (or equivalent officer) of such entity.
16
(e) Parent Officer's Certificate. The Parent Guarantor shall have
furnished to the Initial Purchasers a certificate, dated the Closing Date, of
its Chief Executive Officer and its Chief Financial Officer, in form and
substance reasonably satisfactory to the Initial Purchasers, to the effect set
forth in Annex C hereto.
(f) Comfort Letters. On the date of this Agreement and on the
Closing Date, Deloitte & Touche LLP shall have furnished to the Representative,
at the request of DASI, letters, dated the respective dates of delivery thereof
and addressed to the Initial Purchasers, in form and substance reasonably
satisfactory to the Representative, containing statements and information of the
type customarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Preliminary Offering Memorandum and the Offering Memorandum; provided
that the letter delivered on the Closing Date shall use a "cut-off" date no more
than three business days prior to the Closing Date.
(g) Opinion of Counsel for the Company and DASI. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
LLP, counsel for the Company and DASI, shall have furnished to the
Representative, at the request of the Company, their written opinion, dated the
Closing Date and addressed to the Initial Purchasers, in form and substance
reasonably satisfactory to the Representative, to the effect set forth in Annex
D hereto.
(h) Reliance Letter of Counsel for the Company and DASI. ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇ LLP, counsel for the Company and DASI, shall have furnished to the
Representative, at the request of the Company, their reliance letter with
respect to their opinion, to be delivered to the banks in connection with the
Amendment to the Credit Agreement, dated the Closing Date and addressed to the
Initial Purchasers, in form and substance reasonably satisfactory to the
Representative.
(i) Opinion of Counsel for the Initial Purchasers. The
Representative shall have received on and as of the Closing Date an opinion of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, with respect
to such matters as the Representative may reasonably request, and such counsel
shall have received such documents and information as they may reasonably
request to enable them to pass upon such matters.
(j) No Legal Impediment to Issuance. No action shall have been
taken and no statute, rule, regulation or order shall have been enacted, adopted
or issued by any federal, state or foreign governmental or regulatory authority
that would, as of the Closing Date, prevent the issuance or sale of the
Securities or the issuance of the Guarantees; and no injunction or order of any
federal, state or foreign court shall have been issued that would, as of the
Closing Date, prevent the issuance or sale of the Securities or the issuance of
the Guarantees.
(k) Good Standing. The Representative shall have received on and
as of the Closing Date satisfactory evidence of the good standing of the Company
and the
17
Guarantors in their respective jurisdictions of organization and their good
standing in such other jurisdictions as the Representative may reasonably
request, in each case in writing or any standard form of telecommunication, from
the appropriate governmental authorities of such jurisdictions.
(l) Registration Rights Agreement. The Initial Purchasers shall
have received a counterpart of the Registration Rights Agreement that shall have
been executed and delivered by a duly authorized officer of the Company and each
of the Guarantors.
(m) PORTAL and DTC. The Securities shall have been approved by the
NASD for trading in the PORTAL Market and shall be eligible for clearance and
settlement through DTC.
(n) ▇▇▇▇ ▇. On or prior to the Closing Date, either (i) ▇▇▇▇ I
Molded Plastics of Tennessee, Inc. ("▇▇▇▇ I") shall have been added as a
Guarantor or (ii) the Representative shall be satisfied that any release of the
guarantees of ▇▇▇▇ I and any dissolution of such company does not constitute a
continuing default under (1) the Indenture; (2) the Company's existing credit
facility in accordance with the terms of the Credit Agreement; and (3)
indentures relating to the Company's 9% Senior Subordinated Notes due 2009.
(o) Additional Documents. On or prior to the Closing Date, the
Company and the Guarantors shall have furnished to the Representative such
further certificates and documents as the Representative may reasonably request.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchasers.
▇.▇. ▇▇▇▇▇▇ Securities Inc., on behalf of the several Initial
Purchasers, may, in its sole discretion, waive the performance by the Company or
the Guarantors of any one or more of the foregoing covenants or extend the time
for their performance.
6. Indemnification and Contribution.
(a) Indemnification of the Initial Purchasers. The Company and
each of the Guarantors jointly and severally agree to indemnify and hold
harmless each Initial Purchaser, its affiliates, directors and officers and each
person, if any, who controls such Initial Purchaser within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, reasonable legal fees and other expenses incurred in connection with
any suit, action or proceeding or any claim asserted, as such fees and expenses
are incurred), joint or several, that 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 any amendment
18
or supplement thereto) or any 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, except insofar as
such losses, claims, damages or liabilities arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to any Initial
Purchaser furnished to the Company in writing by such Initial Purchaser through
the Representative expressly for use therein; provided, that with respect to any
such untrue statement in or omission from the Preliminary Offering Memorandum,
the indemnity agreement contained in this paragraph (a) shall not inure to the
benefit of any Initial Purchaser to the extent that the sale to the person
asserting any such loss, claim, damage or liability was an initial resale by
such Initial Purchaser and any such loss, claim, damage or liability of or with
respect to such Initial Purchaser results from the fact that both (i) a copy of
the Offering Memorandum (excluding any documents incorporated by reference
therein) was not sent or given to such person at or prior to the written
confirmation of the sale of such Securities to such person and (ii) the untrue
statement in or omission from such Preliminary Offering Memorandum was corrected
in the Offering Memorandum unless, in either case, such failure to deliver the
Offering Memorandum was a result of non-compliance by the Company with the
provisions of Section 4 hereof.
(b) Indemnification of the Company. Each Initial Purchaser agrees,
severally and not jointly, to indemnify and hold harmless the Company, each of
the Guarantors and each person, if any, who controls the Company or any of the
Guarantors within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the indemnity set forth in paragraph
(a) above, but only with respect to any losses, claims, damages or liabilities
that arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with any information relating to such Initial Purchaser furnished to the Company
in writing by such Initial Purchaser through the Representative expressly for
use in the Preliminary Offering Memorandum and the Offering Memorandum (or any
amendment or supplement thereto), it being understood and agreed that the only
such information consists of the following: the statements concerning the
Initial Purchasers contained in the "Summary" in the sixth sentence under the
heading "Transfer restrictions; absence of public market for the notes", in
"Risk factors" in the third sentence of the first paragraph under the heading
"There is no public market for the notes, and we cannot assure you that a market
for the notes will develop or that you will be able to sell your notes or, if
issued, the exchange notes" and in the third, seventh and ninth paragraphs,
under the heading "Plan of Distribution", and with respect to each Initial
Purchaser, such Initial Purchaser's name as it appears on the front cover.
(c) Notice and Procedures. If any suit, action, proceeding
(including any governmental or regulatory investigation), claim or demand shall
be brought or asserted against any person in respect of which indemnification
may be sought pursuant to either paragraph (a) or (b) above, such person (the
"Indemnified Person") shall promptly notify the person against whom such
indemnification may be sought (the "Indemnifying
19
Person") in writing; provided that the failure to notify the Indemnifying Person
shall not relieve it from any liability that it may have under this Section 6
except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it
from any liability that it may have to an Indemnified Person otherwise than
under this Section 6. If any such proceeding shall be brought or asserted
against an Indemnified Person and it shall have notified the Indemnifying Person
thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to
the Indemnified Person to represent the Indemnified Person and any others
entitled to indemnification pursuant to this Section 6 that the Indemnifying
Person may designate in such proceeding and shall pay the reasonable fees and
expenses of such counsel related to such proceeding, as incurred. In any such
proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably satisfactory to
the Indemnified Person; (iii) the Indemnified Person shall have reasonably
concluded that there may be legal defenses available to it that are different
from or in addition to those available to the Indemnifying Person; or (iv) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such reasonable fees and expenses shall be reimbursed as
they are incurred. Any such separate firm for any Initial Purchaser, its
affiliates, directors and officers and any control persons of such Initial
Purchaser shall be designated in writing by ▇.▇. ▇▇▇▇▇▇ Securities Inc. and any
such separate firm for the Company, the Guarantors and any control persons of
the Company and the Guarantors shall be designated in writing by the Company.
The Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested that an Indemnifying
Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by the Indemnifying
Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (x) includes an
20
unconditional release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (y) does not include any
statement as to or any admission of fault, culpability or a failure to act by or
on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in
paragraphs (a) and (b) above is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantors on the one hand and
the Initial Purchasers on the other from the offering of the Securities or (ii)
if the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company and the
Guarantors on the one hand and the Initial Purchasers on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Guarantors on the one hand and
the Initial Purchasers on the other shall be deemed to be in the same respective
proportions as the net proceeds (before deducting expenses) received by the
Company from the sale of the Securities and the total discounts and commissions
received by the Initial Purchasers in connection therewith, as provided in this
Agreement, bear to the aggregate offering price of the Securities. The relative
fault of the Company and the Guarantors on the one hand and the Initial
Purchasers on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or any Guarantor or by the Initial Purchasers and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) Limitation on Liability. The Company, the Guarantors and the
Initial Purchasers agree that it would not be just and equitable if contribution
pursuant to this Section 6 were determined by pro rata allocation (even if the
Initial Purchasers were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities referred to in
paragraph (d) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with any such action or claim. Notwithstanding the provisions of this
Section 6, in no event shall an Initial Purchaser be required to contribute any
amount in excess of the amount by which the total discounts and commissions
received by such Initial Purchaser with respect to the offering of the
Securities exceeds the amount of any damages that such Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the
21
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers' obligations to contribute pursuant to
this Section 6 are several in proportion to their respective purchase
obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies that may
otherwise be available to any Indemnified Person at law or in equity.
7. Termination. This Agreement may be terminated in the absolute
discretion of the Representative, by notice to the Company, if after the
execution and delivery of this Agreement and prior to the Closing Date: (i)
trading generally shall have been suspended or materially limited on the New
York Stock Exchange, NASDAQ or the over-the-counter market; (ii) trading of any
securities issued or guaranteed by the Company or any of the Guarantors shall
have been suspended on any exchange or in any over-the-counter market; (iii) a
general moratorium on commercial banking activities shall have been declared by
federal or New York State authorities; or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis, either within or outside the United States, that, in the
judgment of the Representative, is material and adverse and makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of
the Securities on the terms and in the manner contemplated by this Agreement and
the Offering Memorandum.
8. Defaulting Initial Purchaser. (a) If, on the Closing Date, any
Initial Purchaser defaults on its obligation to purchase the Securities that it
has agreed to purchase hereunder, the non-defaulting Initial Purchasers may in
their discretion arrange for the purchase of such Securities by other persons
satisfactory to the Company on the terms contained in this Agreement. If, within
36 hours after any such default by any Initial Purchaser, the non-defaulting
Initial Purchasers do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of 36 hours within which to
procure other persons satisfactory to the non-defaulting Initial Purchasers to
purchase such Securities on such terms. If other persons become obligated or
agree to purchase the Securities of a defaulting Initial Purchaser, either the
non-defaulting Initial Purchasers or the Company may postpone the Closing Date
for up to five full business days in order to effect any changes that in the
opinion of counsel for the Company or counsel for the Initial Purchasers may be
necessary in the Offering Memorandum or in any other document or arrangement,
and the Company agrees to promptly prepare any amendment or supplement to the
Offering Memorandum that effects any such changes. As used in this Agreement,
the term "Initial Purchaser" includes, for all purposes of this Agreement unless
the context otherwise requires, any person not listed in Schedule 1 hereto that,
pursuant to this Section 8, purchases Securities that a defaulting Initial
Purchaser agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase
of the Securities of a defaulting Initial Purchaser or Initial Purchasers by the
non-defaulting Initial Purchasers and the Company as provided in paragraph (a)
above, the aggregate principal
22
amount of such Securities that remains unpurchased does not exceed one-eleventh
of the aggregate principal amount of all the Securities, then the Company shall
have the right to require each non-defaulting Initial Purchaser to purchase the
principal amount of Securities that such Initial Purchaser agreed to purchase
hereunder plus such Initial Purchaser's pro rata share (based on the principal
amount of Securities that such Initial Purchaser agreed to purchase hereunder)
of the Securities of such defaulting Initial Purchaser or Initial Purchasers for
which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase
of the Securities of a defaulting Initial Purchaser or Initial Purchasers by the
non-defaulting Initial Purchasers and the Company as provided in paragraph (a)
above, the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Securities, or if the Company shall not exercise the right described in
paragraph (b) above, then this Agreement shall terminate without liability on
the part of the non-defaulting Initial Purchasers. Any termination of this
Agreement pursuant to this Section 8 shall be without liability on the part of
the Company or the Guarantors, except that the Company and each of the
Guarantors will continue to be liable for the payment of expenses as set forth
in Section 9 hereof and except that the provisions of Section 6 hereof shall not
terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Company, the Guarantors or any
non-defaulting Initial Purchaser for damages caused by its default.
9. Payment of Expenses. (a) Whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is terminated,
the Company and each of the Guarantors jointly and severally agree to pay or
cause to be paid all costs and expenses incident to the performance of their
respective obligations hereunder, including without limitation, (i) the costs
incident to the authorization, issuance, sale, preparation and delivery of the
Securities and any taxes payable in that connection; (ii) the costs incident to
the preparation and printing of the Preliminary Offering Memorandum and the
Offering Memorandum (including any amendment or supplement thereto) and the
distribution thereof; (iii) the costs of reproducing and distributing each of
this Agreement, the Securities, the Indenture (including the Guarantees), the
Exchange Securities and the Registration Rights Agreement; (iv) the fees and
expenses of the Company's and the Guarantors' counsel and independent
accountants; (v) the fees and expenses incurred in connection with the
registration or qualification and determination of eligibility for investment of
the Securities under the laws of such jurisdictions as the Representative may
designate and the preparation, printing and distribution of a Blue Sky
Memorandum (including the related fees and expenses of counsel for the Initial
Purchasers); (vi) any fees charged by rating agencies for rating the Securities;
(vii) the fees and expenses of the Trustee and any paying agent (including
related fees and expenses of any counsel to such parties); (viii) all expenses
and application fees incurred in connection with the application for the
inclusion of the Securities on the PORTAL Market and the approval of the
Securities for book-entry transfer by DTC; and (ix) all expenses incurred by the
23
Company (but not the Initial Purchasers) in connection with any "road show"
presentation to potential investors.
(b) If (i) this Agreement is terminated pursuant to Section 7,
(ii) the Company for any reason fails to tender the Securities for delivery to
the Initial Purchasers or (iii) the Initial Purchasers decline to purchase the
Securities for any reason permitted under this Agreement, the Company and each
of the Guarantors jointly and severally agrees to reimburse the Initial
Purchasers for all reasonable out-of-pocket costs and expenses (including the
reasonable fees and expenses of their counsel) reasonably incurred by the
Initial Purchasers in connection with this Agreement and the offering
contemplated hereby.
10. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and any controlling persons referred to herein, and the
affiliates, officers and directors of each Initial Purchaser, the Company and
each Guarantor referred to in Section 6 hereof. Nothing in this Agreement is
intended or shall be construed to give any other person any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein. No purchaser of Securities from any Initial Purchaser shall be
deemed to be a successor merely by reason of such purchase.
11. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, the Guarantors and
the Initial Purchasers contained in this Agreement or made by or on behalf of
the Company, the Guarantors or the Initial Purchasers pursuant to this Agreement
or any certificate delivered pursuant hereto shall survive the delivery of and
payment for the Securities and shall remain in full force and effect, regardless
of any termination of this Agreement or any investigation made by or on behalf
of the Company, the Guarantors or the Initial Purchasers.
12. Certain Defined Terms. For purposes of this Agreement, (a)
except where otherwise expressly provided, the term "affiliate" has the meaning
set forth in Rule 405 under the Securities Act; (b) the term "business day"
means any day other than a day on which banks are permitted or required to be
closed in New York City; (c) the term "Exchange Act" means the Securities
Exchange Act of 1934, as amended; (d) the term "subsidiary" has the meaning set
forth in Rule 405 under the Securities Act; and (e) the term "significant
subsidiary" has the meaning set forth in Rule 1-02 of Regulation S-X under the
Exchange Act.
13. Miscellaneous. (a) Authority of the Representative. Any action
by the Initial Purchasers hereunder may be taken by ▇.▇. ▇▇▇▇▇▇ Securities Inc.
on behalf of the Initial Purchasers, and any such action taken by ▇.▇. ▇▇▇▇▇▇
Securities Inc. shall be binding upon the Initial Purchasers.
(b) Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted and
24
confirmed by any standard form of telecommunication. Notices to the Initial
Purchasers shall be given to the Representative c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax: ▇▇▇-▇▇▇-▇▇▇▇), Attention: ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, with a copy to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax: ▇▇▇-▇▇▇-▇▇▇▇). Notices
to the Company and the Guarantors shall be given to them at Dura Operating
Corp., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (fax: ▇▇▇-▇▇▇-▇▇▇▇),
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, P.C.,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (fax:
▇▇▇-▇▇▇-▇▇▇▇).
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts
(which may include counterparts delivered by any standard form of
telecommunication), each of which shall be an original and all of which together
shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision
of this Agreement, nor any consent or approval to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
parties hereto.
(f) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
25
If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space provided
below.
Very truly yours,
DURA OPERATING CORP.
By:_______________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Chief Financial Officer and
Assistant Secretary
DURA AUTOMOTIVE SYSTEMS, INC.
By:_______________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Chief Financial Officer and
Assistant Secretary
UNIVERSAL TOOL & STAMPING COMPANY INC.
By:_______________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President, Chief Financial Officer and
Treasurer
DURA AUTOMOTIVE SYSTEMS CABLE OPERATIONS, INC.
By:_______________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President, Chief Financial Officer and
Treasurer
ADWEST ELECTRONICS, INC.
By:_______________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President, Chief Financial Officer and
Treasurer
DURA AUTOMOTIVE SYSTEMS OF INDIANA, INC.
By:_______________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President, Chief Financial Officer and
Treasurer
▇▇▇▇▇▇ AUTOMOTIVE INC.
By:_______________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President, Chief Financial Officer and
Treasurer
▇▇▇▇▇▇ MOBILE PRODUCTS, INC.
By:_______________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President, Chief Financial Officer and
Treasurer
DURA G.P.
By:_______________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Chief Financial
Officer and Assistant Secretary
CREATION GROUP HOLDINGS, INC.
By:_______________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President, Chief Financial Officer
and Treasurer
CREATION GROUP, INC.
By:_______________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President, Chief Financial Officer
and Treasurer
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
COMERICA SECURITIES, INC.
SCOTIA CAPITAL (USA) INC.
WACHOVIA CAPITAL MARKETS, LLC
BARCLAYS CAPITAL INC.
ABN AMRO INCORPORATED
By: ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
For itself and as Representative of the
other Initial Purchasers
By: ___________________________
Authorized Signatory
Schedule 1
Initial Purchaser Principal Amount
----------------- ----------------
▇.▇. ▇▇▇▇▇▇ Securities Inc. $ 16,250,000
Banc of America Securities LLC 16,250,000
Comerica Securities, Inc. 5,000,000
Scotia Capital (USA) Inc. 5,000,000
Wachovia Capital Markets, LLC 5,000,000
Barclays Capital Inc. 1,750,000
ABN AMRO Incorporated 750,000
------------
Total $ 50,000,000
Schedule 2
Guarantors
Dura Automotive Systems, Inc.
Universal Tool & Stamping Company Inc.
Dura Automotive Systems Cable Operations, Inc.
Adwest Electronics, Inc.
Dura Automotive Systems of Indiana, Inc.
▇▇▇▇▇▇ Automotive Inc.
▇▇▇▇▇▇ Mobile Products, Inc.
Dura G.P.
Creation Group Holdings, Inc.
Creation Group, Inc.
Schedule 3
Ownership Interests of DASI
In addition to the entities listed on Exhibit 21.1 to DASI's Annual
Report, DASI owns and controls the following entities:
Creation Group Holdings, Inc.
Creation Group, Inc.
Creation Windows, Inc.
Creation Windows, LLC
Spec-Temp, Inc.
▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇▇▇▇▇, LLC
Creation Group Transportation, Inc.
ANNEX A
Restrictions on Offers and Sales Outside the United States
In connection with offers and sales of Securities outside the United
States:
(a) Each Initial Purchaser acknowledges that the 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 pursuant to an exemption from, or in transactions not subject to, the
registration requirements of the Securities Act.
(b) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) Such Initial Purchaser has offered and sold the
Securities, and will offer and sell the Securities, (A) as part of
their distribution at any time and (B) otherwise until 40 days after
the later of the commencement of the offering of the Securities and the
Closing Date, only in accordance with Regulation S under the Securities
Act ("Regulation S") or Rule 144A or any other available exemption from
registration under the Securities Act.
(ii) None of such Initial Purchaser or any of its
affiliates or any other person acting on its or their behalf has
engaged or will engage in any directed selling efforts with respect to
the Securities, and all such persons have complied and will comply with
the offering restrictions requirement of Regulation S.
(iii) At or prior to the confirmation of sale of any
Securities sold in reliance on Regulation S, such Initial Purchaser
will have sent to each distributor, dealer or other person receiving a
selling concession, fee or other remuneration that purchase Securities
from it during the distribution compliance period a confirmation or
notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933, as amended (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 (i) as
part of their distribution at any time or (ii) otherwise until
40 days after the later of the commencement of the offering of
the Securities and the date of original issuance of the
Securities, except in accordance with Regulation S or Rule
144A or any other available exemption from registration under
the Securities Act. Terms used above have the meanings given
to them by Regulation S."
(iv) Such Initial Purchaser has not and will not enter
into any contractual arrangement with any distributor with respect to
the distribution of
the Securities, except with its affiliates or with the prior written
consent of the Company.
Terms used in paragraph (a) and this paragraph (b) and not otherwise defined in
this Agreement have the meanings given to them by Regulation S.
(c) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) it has not offered or sold and, prior to the date six
months after the Closing Date, will not offer or sell any Securities to
persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and
will not result in an offer to the public in the United Kingdom within
the meaning of the United Kingdom Public Offers of Securities
Regulations 1995 (as amended);
(ii) it has only communicated or caused to be communicated
and will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the United Kingdom Financial Services and Markets Act
2000 (the "FSMA")) received by it in connection with the issue or sale
of any Securities in circumstances in which Section 21(1) of the FSMA
does not apply to the Company or the Guarantors; and
(iii) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation
to the Securities in, from or otherwise involving the United Kingdom.
(d) Each Initial Purchaser acknowledges that no action has been or
will be taken by the Company that would permit a public offering of the
Securities, or possession or distribution of the Preliminary Offering
Memorandum, the Offering Memorandum or any other offering or publicity material
relating to the Securities, in any country or jurisdiction where action for that
purpose is required
A-2
ANNEX B
OFFICERS' CERTIFICATE
The undersigned, ______________, the duly appointed chief
executive officer of ___________ (the "Company"), a _________ corporation, and
______________, the duly appointed chief financial officer of the Company, do
hereby certify on behalf of the Company and solely in their respective
capacities as officers of the Company (and not in an individual capacity in any
manner) as follows in connection with Section 5(d) of the Purchase Agreement
dated October 29, 2003 (the "Purchase Agreement"), among the Company, Dura
Automotive Systems, Inc. (the "Parent Guarantor") and the Subsidiary Guarantors
(together with the Parent Guarantor, the "Guarantors") parties thereto and the
initial purchasers named therein (capitalized terms not defined herein are used
in this certificate as defined in the Purchase Agreement):
1. in our opinion, after examining the Offering Memorandum dated October 29,
2003 relating to the sale of the Securities (including the documents
incorporated or deemed to be incorporated therein, the "Offering
Memorandum"), the Offering Memorandum, as of its date and except for the
matters expressly excluded by Section 3(d) of the Purchase Agreement about
which we express no opinion, did not include any untrue statement of a
material fact and did not omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and
since the date of the Offering Memorandum, no event has occurred which
should have been set forth in a supplement or amendment to the Offering
Memorandum so that the Offering Memorandum (as so amended or supplemented)
would not include any untrue statement of a material fact and would not omit
to state a 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.
2. the representations and warranties of the Company and the Guarantors in the
Purchase Agreement are true and correct in all material respects as of the
date hereof;
3. the Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied under the Purchase Agreement on or
prior to the date hereof;
4. subsequent to the respective dates as of which information is given in the
Offering Memorandum: (i) there has been no material adverse change, or any
development that could reasonably be expected to result in a material
adverse change, in the financial condition, or in the earnings, business,
operations or prospects, whether or not arising from transactions in the
ordinary course of business, of Parent Guarantor and its subsidiaries,
considered as one entity (any such change, a "Material Adverse Change");
(ii) the Parent Guarantor and its subsidiaries, considered as one entity,
have not incurred any material liability or obligation, indirect, direct or
contingent, not in the ordinary course of business nor entered into any
material transaction or agreement not in the ordinary course of business,
other than the Credit Agreement and the documents related thereto; and (iii)
there has been no dividend or
distribution of any kind declared, paid or made by the Parent Guarantor or,
except for dividends paid to the Parent Guarantor and its subsidiaries, any
of its subsidiaries on any class of capital stock or repurchase or
redemption by Parent Guarantor or any of its subsidiaries of any class of
capital stock; and
5. subsequent to the execution and delivery of this Agreement, (i) no
downgrading shall have occurred in the rating accorded the Securities or
any other debt securities or preferred stock issued or guaranteed by the
Company or any of the Guarantors by any "nationally recognized statistical
rating organization", as such term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act; and (ii) no such
organization shall have publicly announced that it has under surveillance
or review, or has changed its outlook with respect to, its rating of the
Securities or of any other debt securities or preferred stock issued or
guaranteed by the Company or any of the Guarantors (other than an
announcement with positive implications of a possible upgrading).
[Signatures on next page]
B-2
IN WITNESS WHEREOF, the undersigned have executed this
certificate as of the 4th day of November 2003.
____________________________________
Name:
Title:
____________________________________
Name:
Title:
B-3
ANNEX C
OFFICERS' CERTIFICATE
Reference is made to the offering by Dura Operating Corp., a
Delaware corporation (the "Company"), of $50,000,000 in aggregate principal
amount of 8?% Senior Notes due 2012, pursuant to the terms of the Purchase
Agreement, dated October 29, 2003 (the "Purchase Agreement"), among the Company,
Dura Automotive Systems, Inc. (the "Parent Guarantor") and the Subsidiary
Guarantors parties thereto and the initial purchasers named therein. Capitalized
terms not defined herein are used in this certificate as defined in the Purchase
Agreement.
Each of the undersigned, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the duly
appointed President and Chief Executive Officer of the Parent Guarantor, and
▇▇▇▇▇ ▇. ▇▇▇▇▇, the duly appointed Vice President, Chief Financial Officer and
Assistant Secretary of the Parent Guarantor, pursuant to Section 5(e) of the
Purchase Agreement, hereby certifies on behalf of the Company and solely in
their respective capacities as officers of the Company (and not in an individual
capacity in any manner) that, as of the date hereof:
1. I have reviewed the offering memorandum dated October
29, 2003 (the "Offering Memorandum") which incorporates by reference the Annual
Report on Form 10-K for the fiscal year ended December 31, 2002, the Quarterly
Reports on Form 10-Q for each three month period ended March 31, 2003 and June
30, 2003 and the Definitive Proxy Statement on Schedule 14A of the Parent
Guarantor (the "Covered Reports"). Each reference to the Offering Memorandum
shall be deemed to include the Covered Reports, except to the extent that such
information in the Covered Reports has been modified or superseded by
information contained in the Offering Memorandum, or in any subsequently filed
document incorporated by reference into the Offering Memorandum.
2. Based on my knowledge, the Offering Memorandum does
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading with respect to the periods
covered by the Covered Reports and the Offering Memorandum.
3. Based on my knowledge, the financial statements, and
other financial information included in and incorporated by reference into the
Offering Memorandum, fairly present in all material respects the financial
condition, results of operations and cash flows of the Parent Guarantor as of,
and for, the periods presented in the Covered Reports and the Offering
Memorandum.
4. The Covered Reports fully comply with the
requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(15 U.S.C. 78m or 78o(d)).
5. The Parent Guarantor's other certifying officer and I
are responsible for establishing and maintaining disclosure controls and
procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the Parent
Guarantor and we have:
a. designed such disclosure controls and procedures to
ensure that material information relating to the Parent Guarantor, including its
consolidated subsidiaries, is made known to us by others within those entities,
particularly during the period in which the Covered Reports and the Offering
Memorandum were being prepared;
b. evaluated the effectiveness of the Parent Guarantor
's disclosure controls and procedures as of a date within 90 days prior to the
filing date of the Quarterly Report on Form 10-Q for the period ended June 30,
2003 (the "Evaluation Date"); and
c. presented in the Quarterly Report on Form 10-Q for
the period ended June 30, 2003 our conclusions about the effectiveness of the
disclosure controls and procedures based on our evaluation as of the Evaluation
Date.
6. The Parent Guarantor's other certifying officer and I
have disclosed, based on our most recent evaluation, to the Parent Guarantor's
auditors and the audit committee of Parent Guarantor's board of directors (or
persons performing the equivalent function):
a. all significant deficiencies in the design or
operation of internal controls which could adversely affect the Parent
Guarantor's ability to record, process, summarize and report financial data and
have identified for the Parent Guarantor's auditors any material weakness in
internal controls; and
b. any fraud, whether or not material, that involves
management or other employees who have a significant role in the Parent
Guarantor's internal controls.
7. The Parent Guarantor's other certifying officer and I
have indicated in the Quarterly Report on Form 10-Q for the period ended June
30, 2003 whether or not there were significant changes in internal controls or
in other factors that could significantly affect internal controls subsequent to
the date of our most recent evaluation, including any corrective actions with
regard to significant deficiencies and material weaknesses.
[Signatures on next page]
C-2
Dated as of this 4th day of November 2003.
_______________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Title: President and Chief Executive Officer
_______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Chief Financial Officer and
Assistant Secretary
C-3
Annex D
[Form of Opinion of Counsel for the Company]
▇.▇. ▇▇▇▇▇▇ Securities Inc.
and the other several Initial Purchasers listed
on Schedule 1 to the Purchase
Agreement referred to below
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: $50,000,000 8 5/8% Senior Notes due 2012
Ladies and Gentlemen:
We are issuing this letter in our capacity as special counsel for Dura
Operating Corp., a Delaware corporation (the "Company"), Dura Automotive
Systems, Inc., a Delaware corporation ("Parent"), and each of the subsidiaries
of the Company listed on Exhibit A attached hereto (the "Subsidiary Guarantors"
and, collectively with Parent, the "Guarantors") in response to the requirement
in Section 5(g) of the Purchase Agreement, dated October 29, 2003 (the "Purchase
Agreement"), among the Company, the Guarantors and ▇.▇. ▇▇▇▇▇▇ Securities Inc.
and the other several Initial Purchasers listed on Schedule 1 of the Purchase
Agreement (collectively, the "Initial Purchasers" and herein being called
"you"). Every term which is defined or given a special meaning in the Purchase
Agreement and which is not given a different meaning in this letter has the same
meaning whenever it is used in this letter as the meaning it is given in the
Purchase Agreement.
In connection with the preparation of this letter, we have among other
things read:
(a) the Offering Memorandum of the Company and the
Guarantors, dated October 29, 2003, covering the offering and sale of
the Securities (the "Offering Memorandum");
(b) an executed original of the Purchase Agreement;
(c) an executed original of the Indenture;
(d) specimen certificate of the Securities and the
Guarantees;
(e) an executed original of the Registration Rights
Agreement;
(f) a certified copy of (i) resolutions adopted by the
Board of Directors of the Company on October [__], 2003, (ii)
resolutions adopted by the Pricing Committee of the Board of Directors
of the Company on October [__], 2003 and (iii) resolutions adopted by
the Board of Directors of each of the Guarantors (or, in the case of
Dura G.P., the general partner) on October [__], 2003; and;
(f) a certified copy of resolutions adopted on October
___, 2003 by the Board of Directors of each of the Subsidiary
Guarantors; and
(g) copies of all certificates and other documents
delivered today at the closing of the purchase and sale of the
Securities under the Purchase Agreement.
The term "Transaction Documents" is used in this letter to collectively
refer to the Purchase Agreement, the Indenture, the Securities, the Guarantees
and the Registration Rights Agreement.
Subject to the assumptions, qualifications and limitations which are
identified in this letter, we advise you that:
(1) Each of the Company and Parent is a corporation validly
existing and in good standing under the General Corporation Law of the State of
Delaware.
(2) Each of the Company and Parent is qualified to do business as
a foreign corporation and is in good standing in those states listed on Exhibit
A attached hereto, which we have been informed by the Company are the only
states in which the Company or Parent is qualified to do business as a foreign
corporation.
(3) Each of the Subsidiary Guarantors is a validly existing
corporation or general partnership, as the case may be, and is in good standing
under the laws of the jurisdiction of its organization. Each of the Subsidiary
Guarantors is qualified to do business as a foreign corporation or general
partnership, as the case may be, and is in good standing in those states listed
on Exhibit A attached hereto, which we have been informed by the Company are the
only states in which such Subsidiary Guarantor is qualified to do business as a
foreign corporation or general partnership, as the case may be.
(4) Each of the Company and the Guarantors has under its charter,
bylaws or other organizational documents the power to own and lease its
properties and to conduct its business as described in the Offering Memorandum.
(5) The Purchase Agreement has been duly authorized, executed and
delivered by the Company and each of the Guarantors.
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(6) The Indenture has been duly authorized, executed and delivered
by the Company and each of the Guarantors. The Indenture is a valid and binding
obligation of the Company and each of the Guarantors, and is enforceable against
the Company and each of the Guarantors in accordance with its terms.
(7) The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and each of the Guarantors. The
Registration Rights Agreement is a valid and binding obligation of the Company
and each of the Guarantors, and is enforceable against the Company and each of
the Guarantors in accordance with its terms.
(8) The Securities have been duly authorized, executed and
delivered by the Company, and when paid for by the Initial Purchasers in
accordance with the terms of the Purchase Agreement (assuming the due
authentication and delivery of the Securities by the Trustee in accordance with
the Indenture), will constitute "Additional Notes" under the terms of the
Indenture, will constitute the valid and binding obligations of the Company, and
will be enforceable against the Company in accordance with their terms.
(9) The Guarantees of the Securities have been duly authorized,
executed and delivered by each of the Guarantors and, when the Securities have
been paid for by the Initial Purchasers in accordance with the terms of the
Purchase Agreement (assuming the due authentication and delivery of the
Securities by the Trustee in accordance with the Indenture), will constitute
Guarantees under the terms of the Indenture, will constitute the valid and
binding obligations of each of the Guarantors and will be enforceable against
the Guarantors in accordance with their terms.
(10) Each of the Board of Directors of each of the Company and the
Guarantors (other than Dura G.P.), and the general partner of Dura G.P., has
adopted by requisite vote the resolutions necessary to authorize the execution,
delivery and performance of, in the case of the Company, the Exchange Securities
and, in the case of the Guarantors, the Exchange Guarantees. No approval by the
stockholders (or, in the case of Dura G.P., the partners) of the Company or the
Guarantors is required for the authorization, delivery or performance of the
Exchange Securities or the Exchange Guarantees.
(11) The execution and delivery of the Purchase Agreement, the
Registration Rights Agreement by the Company and each of the Guarantors, the
performance by the Company and the Guarantors of their respective obligations
thereunder and the consummation of the transactions contemplated thereby
(including, without limitation, the Company's issuance and sale of the
Securities to you in accordance with the terms of the Purchase Agreement and the
application of the net proceeds therefrom as described in the Offering
Memorandum under the caption "Use of proceeds") do not and will not conflict
with or constitute or result in a breach, creation of a lien or encumbrance or
default under (or an event which with notice or the passage of time or both
would constitute a default under) or violation of any of, (i) the charter,
bylaws or other organizational documents of the Company and the Guarantors, (ii)
any statute or
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governmental rule or regulation which, in our experience, is normally applicable
both to general business corporations that are not engaged in regulated business
activities and to transactions of the type contemplated by the Offering
Memorandum (but without our having made any special investigation as to other
laws and provided that we express no opinion in this paragraph with respect to
(a) any laws, rules or regulations to which the Company or the Guarantors may be
subject as a result of the Initial Purchasers' legal or regulatory status or the
involvement of the Initial Purchasers in such transactions, (b) any laws, rules
or regulations relating to misrepresentations or fraud or (c) the Securities
Act, the Exchange Act or the Trust Indenture Act of 1939) or (iii) the terms or
provisions of any contract set forth on Exhibit B attached hereto, which the
Company and the Guarantors have represented to us constitute all of the material
contracts of the Company and the Guarantors (provided that in each case we
express no opinion as to compliance with any financial test or cross-default
provision in any such agreement), except for in the case of clauses (ii) and
(iii) above, any such conflict, breach, violation, default or event which would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Change or to materially impair the ability of the Company or the
Guarantors to perform their respective obligations under the Transaction
Documents.
(12) To our actual knowledge, no consent, waiver, approval,
authorization or order of any court or governmental authority is required for
the issuance and sale by the Company of the Securities or the issuance of the
Guarantees of the Securities by the Guarantors to the Initial Purchasers or the
consummation by the Company or the Guarantors of the other transactions
contemplated by the Transaction Documents, except such as may be required under
the Securities Act, the Exchange Act, the Trust Indenture Act of 1939 and the
security or Blue Sky laws of the various states (and the rules and regulations
thereunder), as to which we express no opinion in this paragraph.
(13) No registration under the Securities Act of the Securities is
required in connection with the sale of the Securities to the Initial Purchasers
in the manner contemplated by the Purchase Agreement and the Offering Memorandum
or in connection with the initial resale of the Securities by the Initial
Purchasers in accordance with the Purchase Agreement assuming (i) that the
purchasers who buy such Securities in the initial resale thereof are qualified
institutional buyers as defined in Rule 144A promulgated under the Securities
Act, or persons other than U. S. persons in connection with offers and sales
made in reliance upon Regulation S under the Securities Act, (ii) the accuracy
and completeness of the Initial Purchasers' representations set forth in Section
1(b) of the Purchase Agreement (including Annex A thereto), and those of the
Company and the Guarantors set forth in Sections 3(b), 3(c) and 3(dd) of the
Purchase Agreement regarding, among other things, the absence of a general
solicitation in connection with the sale of such Securities to the Initial
Purchasers and the initial resales thereof, and (iii) the compliance with the
procedures set forth in the Purchase Agreement by the Initial Purchasers, the
Company and the Guarantors.
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(14) The information in the Offering Memorandum under the headings
"Description of notes," "Exchange offer and registration rights," "Transfer
restrictions," "Certain U.S. federal tax considerations" and "Certain ERISA
considerations" to the extent that it summarizes laws, governmental rules or
regulations or documents referred to therein is correct is all material
respects.
(15) We have no knowledge about any legal or governmental
proceeding that is pending or threatened against Parent or any of its
subsidiaries that has caused us to conclude that such proceeding would be
required to be described by Item 103 of Regulation S-K under the Securities Act
if the issuance of the Securities were being registered under the Securities Act
but is not so described in the Offering Memorandum.
(16) Neither the Company nor any Guarantor is, and immediately
after the sale of the Securities to the Initial Purchasers and application of
the net proceeds therefrom as described in the Offering Memorandum under the
caption "Use of proceeds" will be, an "investment company" as such term is
defined in the Investment Company Act.
(17) To our actual knowledge, there are no contracts, agreements or
understandings between the Company or the Guarantors and any other person
granting such person the right to require the Company or the Guarantors to
include any securities with the Exchange Securities registered pursuant to the
Exchange Offer Registration Statement.
(18) Neither the sale, issuance, execution or delivery of the
Securities nor the application of the net proceeds therefrom as described in the
Offering Memorandum under the caption "Use of proceeds" will contravene
Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or
Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal
Reserve System.
*********
The purpose of our professional engagement was not to establish factual
matters, and preparation of the Offering Memorandum involved many determinations
of a wholly or partially nonlegal character. We make no representation that we
have independently verified the accuracy, completeness or fairness of the
Offering Memorandum or that the actions taken in connection with the preparation
of the Offering Memorandum (including the actions described in the next
paragraph) were sufficient to cause the Offering Memorandum to be accurate,
complete or fair. We are not passing upon and do not assume any responsibility
for the accuracy, completeness or fairness of the Offering Memorandum except to
the extent otherwise explicitly indicated in numbered paragraph 14 above.
We can however confirm that we have participated in conferences with
representatives of the Company, representatives of the Initial Purchasers,
counsel for the Initial Purchasers and representatives of the independent
auditors for the Company during which disclosures in the Offering Memorandum and
related matters were
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discussed. In addition, we have reviewed certain corporate records furnished to
us by the Company. We were not retained by Parent or the Company to prepare the
periodic reports, proxy statements or other materials incorporated by reference
into the Offering Memorandum and our knowledge about those materials is limited
to our review thereof.
Based upon our participation in the conferences and our document review
identified in the preceding paragraph, our understanding of applicable law and
the experience we have gained in our practice thereunder and relying as to
materiality to a large extent upon the opinions and on statements of officers of
Parent and/or the Company, we can, however, advise you that nothing has come to
our attention that has caused us to conclude that the Offering Memorandum, at
the date it bears or on the date of this letter, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
*********
Except for the activities described in the immediately preceding
section of this letter, we have not undertaken any investigation to determine
the facts upon which the advice in this letter is based.
We have assumed for purposes of this letter: each document we have
reviewed for purposes of this letter is accurate and complete, each such
document that is an original is authentic, each such document that is a copy
conforms to an authentic original, and all signatures on each such document are
genuine; that the Purchase Agreement and every other agreement we have examined
for purposes of this letter constitutes a valid and binding obligation of each
party to that document and that each such party has satisfied all legal
requirements that are applicable to such party to the extent necessary to
entitle such party to enforce such agreement (except that we make no such
assumption with respect to the Company, Parent and each of the Subsidiary
Guarantors); and that you have acted in good faith and without notice of any
fact which has caused you to reach any conclusion contrary to any of the advice
provided in this letter. We have also made other assumptions which we believe to
be appropriate for purposes of this letter.
In preparing this letter we have relied without independent
verification upon: (i) information contained in certificates obtained from
governmental authorities; (ii) factual information represented to be true in the
Purchase Agreement and other documents specifically identified at the beginning
of this letter as having been read by us; (iii) factual information provided to
us by the Company or its representatives; and (iv) factual information we have
obtained from such other sources as we have deemed reasonable. We have assumed
that there has been no relevant change or development between the dates as of
which the information cited in the preceding sentence was given and the date of
this letter and that the information upon which we have relied is accurate and
does not omit disclosures necessary to prevent such information from being
misleading. For purposes of numbered paragraphs 1, 2 and 3, we have relied
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exclusively upon certificates issued by governmental authorities in the relevant
jurisdictions and such opinion is not intended to provide any conclusion or
assurance beyond that conveyed by those certificates.
We confirm that we do not have knowledge that has caused us to conclude
that our reliance and assumptions cited in the two immediately preceding
paragraphs are unwarranted. Whenever this letter provides advice about (or based
upon) our knowledge of any particular information or about any information which
has or has not come to our attention such advice is based entirely on the
conscious awareness at the time this letter is delivered on the date it bears by
the lawyers with ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP who have devoted substantive attention to
the negotiation or preparation of the Transaction Documents, the Offering
Memorandum and the due diligence associated therewith.
Each opinion (an "enforceability opinion") in this letter that any
particular contract is a valid and binding obligation or is enforceable in
accordance with its terms is subject to: (i) the effect of bankruptcy,
insolvency, fraudulent conveyance and other similar laws and judicially
developed doctrines in this area such as substantive consolidation and equitable
subordination; (ii) the effect of general principles of equity; and (iii) other
commonly recognized statutory and judicial constraints on enforceability
including statutes of limitations. "General principles of equity" include but
are not limited to: principles limiting the availability of specific performance
and injunctive relief; principles which limit the availability of a remedy under
certain circumstances where another remedy has been elected; principles
requiring reasonableness, good faith and fair dealing in the performance and
enforcement of an agreement by the party seeking enforcement; principles which
may permit a party to cure a material failure to perform its obligations; and
principles affording equitable defenses such as waiver, laches and estoppel. It
is possible that terms in a particular contract covered by our enforceability
opinion may not prove enforceable for reasons other than those explicitly cited
in this letter should an actual enforcement action be brought, but (subject to
all the exceptions, qualifications, exclusions and other limitations contained
in this letter) such unenforceability would not in our opinion prevent the party
entitled to enforce that contract from realizing the principal benefits
purported to be provided to that party by the terms in that contract which are
covered by our enforceability opinion.
Our advice on every legal issue addressed in this letter is based
exclusively on the internal law of the State of New York or the federal law of
the United States, except that the opinions in paragraphs 1, 3 and 4 and
paragraphs 5, 6, 7, 8, 9 and 10 with respect to the due authorization, execution
and delivery of the Transaction Documents are based solely on the Delaware
General Corporation Law (the "DGCL") with respect to the Company, Parent and
those Subsidiary Guarantors set forth on Exhibit A that are incorporated under
the DGCL and the corporate or partnership statutes listed on Exhibit C attached
hereto with respect to the other Subsidiary Guarantors. We note that we are not
admitted to practice in Indiana, Michigan and Tennessee and, as such, our
opinions are based solely on our review of the applicable provisions of the
corporate statutes listed on Exhibit C attached hereto as such statutes relate
to such Subsidiary Guarantors
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without regard to any regulations promulgated thereunder or any judicial,
administrative or regulatory interpretations thereof. In our opinion, New York
state courts would apply New York state law to resolve state law issues arising
under the Transaction Documents. We express no opinion as to what law might be
applied by any other courts to resolve any issue addressed by our opinion and we
express no opinion as to whether any relevant difference exists between the laws
upon which our opinions are based and any other laws which may actually be
applied to resolve issues which may arise under the Transaction Documents. The
manner in which any particular issue would be treated in any actual court case
would depend in part on facts and circumstances particular to the case and would
also depend on how the court involved chose to exercise the wide discretionary
authority generally available to it. This letter is not intended to guarantee
the outcome of any legal dispute which may arise in the future.
None of the opinions or other advice contained in this letter considers
or covers: (i) any state securities (or "blue sky") laws or regulations, (ii)
any financial statements or supporting schedules (or any notes to any such
statements or schedules) or other financial or statistical information set forth
or incorporated by reference in (or omitted from) the Offering Memorandum or
(iii) any rules and regulations of the National Association of Securities
Dealers, Inc. relating to the compensation of underwriters. In addition, none of
the opinions or other advice contained in the letter covers or otherwise
addresses any of the following types of provisions which may be contained in the
Transaction Documents: (i) provisions mandating contribution towards judgments
or settlements among various parties; (ii) waivers of benefits and rights to the
extent they cannot be waived under applicable law; (iii) provisions providing
for liquidated damages, late charges and prepayment charges, in each case if
deemed to constitute penalties; (iv) provisions which might require
indemnification or contribution in violation of general principles of equity or
public policy, including, without limitation, indemnification or contribution
obligations which arise out of the failure to comply with applicable state or
federal securities laws; or (v) requirements in the Transaction Documents
specifying that provisions thereof may only be waived in writing (these
provisions may not be valid, binding or enforceable to the extent that an oral
agreement or an implied agreement by trade practice or course of conduct has
been created modifying any provision of such documents). This letter does not
cover any other laws, statutes, governmental rules or regulations or decisions
which in our experience are not usually considered for or covered by opinions
like those contained in this letter or are not generally applicable to
transactions of the kind covered by the Purchase Agreement.
This letter speaks as of the time of its delivery on the date it bears.
We do not assume any obligation to provide you with any subsequent opinion or
advice by reason of any fact about which we did not have knowledge at that time,
by reason of any change subsequent to that time in any law, other governmental
requirement or interpretation thereof covered by any of our opinions or advice,
or for any other reason.
This letter is being provided to you pursuant to the provision in the
Purchase Agreement cited in the initial paragraph of this letter and may not be
relied upon by you
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for any other purpose. Without our written consent: (i) no person other than the
Initial Purchasers may rely on this letter for any purpose; (ii) this letter may
not be cited or quoted in any financial statement, offering memorandum, private
placement memorandum or other similar document; (iii) this letter may not be
cited or quoted in any other document or communication which might encourage
reliance upon this letter by any person or for any purpose excluded by the
restrictions in this paragraph; and (iv) copies of this letter may not be
furnished to anyone for purposes of encouraging such reliance.
Very truly yours,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
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EXHIBIT A
GOOD STANDING
State of Organization or Foreign
Name Formation Qualifications
---------------------------------------------- ------------------------ --------------
Dura Automotive Systems, Inc. Delaware None
Dura Operating Corp. Delaware Florida, Illinois,
Indiana, Iowa,
Kentucky, Michigan,
Minnesota, Missouri,
Ohio, Tennessee, Texas
SUBSIDIARY GUARANTORS:
Adwest Electronics, Inc. Delaware None
▇▇▇▇▇▇ Automotive Inc. Michigan Illinois, Kentucky,
Missouri, Tennessee
▇▇▇▇▇▇ Mobile Products, Inc. Illinois Indiana, Michigan,
Tennessee, Utah
Dura Automotive Systems Cable Operations, Inc. Delaware Arkansas, Michigan,
Tennessee
Dura Automotive Systems of Indiana, Inc. Indiana None
Universal Tool & Stamping Company Inc. Indiana Michigan
Dura G.P. Delaware Michigan
Creation Group Holdings, Inc. Indiana None
Creation Group, Inc. Indiana Pennsylvania
EXHIBIT B
MATERIAL CONTRACTS(1)
1. Indenture, dated as of April 18, 2002, among Dura Operating Corp., the
guarantors named therein and BNY Midwest Trust Company, as trustee, as
supplemented to the date hereof.
2. Amended and Restated Credit Agreement, dated as of March 19, 1999, as
amended and restated as of October [__], 2003, among Dura Automotive
Systems, Inc., a Delaware corporation ("Parent") as parent guarantor,
Dura Operating Corp., a Delaware corporation ("Dura"), Trident
Automotive Limited, a private limited company incorporated under the
laws of England and Wales, Dura Holdings Germany GmbH, a limited
liability company organized under the laws of Germany, Dura Automotive
Systems Europe, S.A., a company organized under the laws of France,
Dura Automotive Systems (Canada), Ltd, an Ontario corporation, the
several banks and other financial institutions or entities from time to
time parties to this Agreement, Bank of America, N.A., as syndication
agent, and JPMorgan Chase Bank, as administrative agent [(THE
"AGENT")].
3. The security documents related to the Amended and Restated Credit
Agreement described in item 2 above, as follows:
(a) the Reaffirmation and Amendment of Guarantees, dated
as of March 19, 1999, executed by Parent, Dura, Dura Automotive Systems
Cable Operations Inc. ("DASCO"), Column Shifter Operations ("Column
Shifter Operations") and Universal Tool & Stamping Company Inc.
("Universal Tool" and collectively with all of the parties named in
this item (a), the "U.S. Transaction Parties") in favor of the [AGENT];
(b) the Amended and Restated Corporate Guaranty, dated as
of March 19, 1999, executed by Parent, Column Shifter Operations and
Universal Tool in favor of the Agent;
(c) the Amended and Restated Corporate Guaranty, dated as
of March 19, 1999, executed by the Dura in favor of the Agent;
(d) the Amended and Restated Guaranty, dated as of March
19, 1999, executed by DASCO in favor of the Agent;
(e) the Reaffirmation and Amendment of Collateral
Documents, dated as of March 19, 1999, executed by each of the U.S.
Transaction Parties in favor of the Agent;
--------
(1) Description of credit documents contained in numbers 2 and 3 below to be
finalized.
(f) the Security Agreement, dated as of March 19, 1999,
among the U.S. Transaction Parties and the Agent;
(g) the Amended and Restated Pledge Agreement, dated as
of March 19, 1999, executed by Parent in favor of the Agent;
(h) the Amended and Restated Pledge Agreement, dated as
of March 19, 1999, executed by the Dura in favor of the Agent;
(i) the Joinder Agreement to Security Agreement, dated as
of March 23, 1999, executed by Adwest Western Automotive, Inc. ("AWA")
and Adwest Electronics, Inc. ("AEI");
(j) the Pledge Agreement, dated as of March 23, 1999,
executed by AEI in favor of the Agent;
(k) the Guaranty, dated as of March 23, 1999, executed by
each of ▇▇▇▇▇▇ Industries, Inc. ("▇▇▇▇▇▇"), X.E. Co. ("XE"), Excel of
Tennessee, L.P. ("Excel of Tennessee"), Excel Corporation ("Excel"),
Excel Industries of Michigan, Inc. ("Excel Michigan"), ▇▇▇▇▇▇▇▇
Industries, Inc. ("▇▇▇▇▇▇▇▇"), Hydro Flame Corporation ("Hydro Flame"),
▇▇▇▇ I Molded Plastics, Inc. ("▇▇▇▇ I"), ▇▇▇▇ I Molded Plastics of
Tennessee, Inc. ("▇▇▇▇ I Tennessee") and ▇▇▇▇▇▇ Automotive Industries,
Inc. ("▇▇▇▇▇▇ Automotive") in favor of the Agent;
(l) the Joinder Agreement to Security Agreement, dated as
of March 23, 1999, executed by XE, Excel Tennessee, Excel, Excel
Michigan, Anderson, Atwood, Hydro Flame, ▇▇▇▇ I, ▇▇▇▇ I Tennessee and
▇▇▇▇▇▇ Automotive in favor of the Agent;
(m) the Supplement to Pledge Agreement, dated as of March
23, 1999, between the Dura and the Agent;
(n) the Pledge Agreement, dated as of March 23, 1999,
between ▇▇▇▇▇▇ and the Agent;
(o) the Pledge Agreement, dated as of March 23, 1999,
between ▇▇▇▇ I and the Agent;
(p) the Pledge Agreement, dated as of March 23, 1999,
between ▇▇▇▇▇▇▇▇ and the Agent;
(q) the Assignment and Pledge Agreement, dated as of
March 23, 1999, between XE, Excel Michigan and the Agent;
(r) the Joinder Agreement to Credit Agreement, dated as
of March 23, 1999, executed by Adwest Automotive plc in favor of the
Agent; and
(s) the Joinder Agreement to Pledge Agreement and
Security Agreement, dated as of April 18, 2002, executed by Dura G.P.
in favor of the Agent.
4. Amended and Restated Stockholders Agreement, dated as of August 13,
1996, by and among Dura Automotive Systems, Inc., Onex DHC LLC, J2R
Corporation, Alkin Co. and each of the other stockholders named
therein.
5. Amended and Restated Investor Stockholders Agreement, dated as of
August 13, 1996, by and among Dura Automotive Systems, Inc., Onex DHC
LLC, J2R Corporation and the other stockholders listed on the signature
page thereto.
6. Registration Agreement, dated as of August 31, 1994, among Dura
Automotive Holding, Inc. (predecessor to Dura Automotive Systems,
Inc.), and the persons listed on Schedule A attached thereto and
Orscheln Co. (now known as Alkin Co.) as amended by Amendment to
Registration Agreement, dated as of May 17, 1995.
7. Joint Venture Agreement by and among Orscheln Co., MC Holding Corp.,
Onex U.S. Investments, Inc., J2R Corporation and Dura Automotive
Holding, Inc., dated as of August 31, 1994.
8. Agreement and Plan of Merger, dated as of January 19, 1999, by and
among Dura Automotive Systems, Inc., Windows Acquisition Corporation
and Excel Industries, Inc., as amended by Amendment to Agreement and
Plan of Merger, dated as of March 9, 1999.
9. Stock Purchase Agreement, dated as of April 8, 1998, by and among Dura
Automotive Systems (UK) Limited and the various selling shareholders
listed on the various signature pages thereto.
10. Dollar Notes Indenture, dated as of April 22, 1999, by and among Dura
Operating Corp., the guarantors named therein and U.S. Bank Trust
National Association, as trustee, as amended to the date hereof.
11. Euro Notes Indenture, dated as of April 22, 1999, by and among Dura
Operating Corp., the guarantors named therein and U.S. Bank Trust
National Association, as trustee, as amended to the date hereof.
12. Indenture, dated as of June 11, 2001, by and among Dura Operating
Corp., the guarantors named therein and U.S. Bank Trust National
Association, as trustee, as amended to the date hereof.
EXHIBIT C
CORPORATE STATUTES
INDIANA BUSINESS CORPORATION LAW
Dura Automotive Systems of Indiana, Inc.
Universal Tool & Stamping Company Inc.
Creation Group Holdings, Inc.
Creation Group, Inc.
MICHIGAN BUSINESS CORPORATION ACT
▇▇▇▇▇▇ Automotive Inc.
ILLINOIS BUSINESS CORPORATION ACT
▇▇▇▇▇▇ Mobile Products, Inc.
DELAWARE REVISED UNIFORM PARTNERSHIP ACT
Dura G.P.
Exhibit A
[Form of Registration Rights Agreement]