Exhibit 1.1
▇. ▇. ▇▇▇▇▇▇ Automotive Castings, Inc.
French Holdings, Inc.
▇. ▇. ▇▇▇▇▇▇ Corporation
Allotech International, Inc.
$175,000,000
11 1/2% Senior Subordinated Notes due 2009
Purchase Agreement
dated May 25, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
Chase Securities Inc.
TABLE OF CONTENTS
Section 1. Representations and Warranties.....................................2
Section 2. Purchase, Sale and Delivery of the Securities.....................11
Section 3. Additional Covenants..............................................12
Section 4. Payment of Expenses...............................................15
Section 5. Conditions of the Obligations of the Initial Purchasers...........15
Section 6. Reimbursement of Initial Purchasers' Expenses.....................17
Section 7. Offer, Sale and Resale Procedures.................................18
Section 8. Indemnification...................................................19
Section 9. Contribution......................................................22
Section 10. Termination of this Agreement....................................23
Section 11. Representations and Indemnities to Survive Delivery..............23
Section 12. Notices..........................................................24
Section 13. Successors.......................................................24
Section 14. Partial Unenforceability.........................................25
Section 15. Agreement........................................................25
Section 16. Default of One or More of the Several Initial Purchasers.........25
Section 17. General Provisions...............................................25
PURCHASE AGREEMENT
May 25, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ SECURITIES LLC
Chase Securities Inc.
As Initial Purchasers
c/o BANC OF AMERICA SECURITIES LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Introductory. ▇. ▇. ▇▇▇▇▇▇ Automotive Castings, Inc., a Delaware
corporation (the "Company), proposes to issue and sell to the several Initial
Purchasers named in SCHEDULE A (the "Initial Purchasers"), acting severally and
not jointly, the respective amounts set forth in such SCHEDULE A of an aggregate
in principal amount of $175,000,000 of the Company's 11 1/2% Senior Subordinated
Notes due 2009 (the "Notes"). Banc of America Securities LLC and Chase
Securities Inc. have agreed to act as the several Initial Purchasers in
connection with the offering and sale of the Securities (as defined below).
The Securities will be issued pursuant to an indenture dated as of May
28, 1999 (the "Indenture") among French Holdings, Inc., ▇. ▇. ▇▇▇▇▇▇
Corporation, and Allotech International, Inc. (collectively, the "Guarantors"),
the Company and U.S. Bank Trust National Association, as trustee (the
"Trustee"). Securities issued in book-entry form will be issued in the name of
Cede & Co., as nominee of The Depository Trust Company (the "Depository")
pursuant to a DTC Agreement, to be dated as of May 28, 1999 (the "DTC
Agreement"), among the Company, the Trustee and the Depository.
The holders of the Notes will be entitled to the benefits of a
registration rights agreement to be dated as of May 28, 1999 (the "Registration
Rights Agreement"), among the Company, the Guarantors and the Initial
Purchasers, pursuant to which the Company will agree to file, within 90 days of
the Closing Date, a registration statement with the Commission (as defined
herein) registering the Exchange Securities (as defined herein) under the
Securities Act (as defined herein). The payment of principal of, premium and
Liquidated Damages (as defined in the Indenture), if any, and interest on the
Notes and the Exchange Notes (as defined below) will be fully and
unconditionally guaranteed on a senior subordinated basis, jointly and severally
by the Guarantors and any subsidiary of the Company formed or acquired after the
Closing Date that executes an additional guarantee in accordance with the terms
of the Indenture, and their respective successors and assigns, pursuant to their
guaranties (the "Guaranties"). The Notes and the Guaranties attached thereto are
herein collectively referred to as the "Securities"; and the Exchange Notes and
the Guaranties attached thereto are herein collectively referred to as the
"Exchange Securities."
The Company understands that the Initial Purchasers propose to make an
offering of the Securities on the terms and in the manner set forth herein and
in the Offering Memorandum (as defined below) and agrees that the Initial
Purchasers may resell, subject to the conditions set forth herein, all or a
portion of the Securities to purchasers (the "Subsequent Purchasers") at any
time after the date of this Agreement. The
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Securities are to be offered and sold to or through the Initial Purchasers
without being registered with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933 (as amended, the "Securities
Act," which term, as used herein, includes the rules and regulations of the
Commission promulgated thereunder), in reliance upon exemptions therefrom. The
terms of the Securities and the Indenture will require that investors that
acquire Securities expressly agree that Securities may only be resold or
otherwise transferred, after the date hereof, if such Securities are registered
for sale under the Securities Act or if an exemption from the registration
requirements of the Securities Act is available (including the exemptions
afforded by Rule 144A ("Rule 144A") or Regulation S ("Regulation S")
thereunder).
The Company has prepared and delivered to each Initial Purchaser copies
of a Preliminary Offering Memorandum, dated May 11, 1999 (the "Preliminary
Offering Memorandum"), and has prepared and will deliver to each Initial
Purchaser, copies of the Offering Memorandum, dated May 25, 1999, describing the
terms of the Securities, each for use by such Initial Purchaser in connection
with its solicitation of offers to purchase the Securities. As used herein, the
"Offering Memorandum" shall mean, with respect to any date or time referred to
in this Agreement, the Company's Offering Memorandum, dated May 25, 1999,
including amendments, supplements or exhibits thereto, in the most recent form
that has been prepared and delivered by the Company to the Initial Purchasers in
connection with their solicitation of offers to purchase Securities. Further,
any reference to the Preliminary Offering Memorandum or the Offering Memorandum
shall be deemed to refer to and include any Additional Issuer Information (as
defined in Section 3(h)) furnished by the Company prior to the completion of the
distribution of the Securities.
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Offering Memorandum (or other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
which are incorporated by reference in the Offering Memorandum; and all
references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934 (as amended, the "Exchange Act," which term,
as used herein, includes the rules and regulations of the Commission promulgated
thereunder) which is incorporated or deemed to be incorporated by reference in
the Offering Memorandum.
The Company and the Guarantors hereby confirm their agreements with the
Initial Purchasers as follows:
SECTION
1. REPRESENTATIONS AND WARRANTIES.
The Company and the Guarantors, jointly and severally, hereby
represent, warrant and covenant to each Initial Purchaser as follows:
1. NO REGISTRATION REQUIRED
Subject to compliance by the Initial Purchasers with the
representations and warranties set forth in Section 2(e) hereof and with the
procedures set forth in Section 7 hereof, 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,
until such time as the Exchange Securities are issued pursuant to an effective
registration statement, to qualify the Indenture under
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the Trust Indenture Act of ▇▇▇▇ (▇▇▇ "▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇," which term, as used
herein, includes the rules and regulations of the Commission promulgated
thereunder).
2. 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, (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.
3. 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.
4. THE OFFERING MEMORANDUM
The Offering Memorandum does not, and at the Closing Date will not,
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 Banc of America Securities LLC expressly for use in the Offering
Memorandum. Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date, contains 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 a Preliminary Offering Memorandum or the Offering Memorandum.
5. 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 rights to indemnification hereunder may
be limited by applicable law and except as the
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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.
6. THE REGISTRATION RIGHTS AGREEMENT AND THE DTC AGREEMENT
At the Closing Date, each of the Registration Rights Agreement and the
DTC Agreement 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 Notes (the "Exchange
Notes") to be offered in exchange for the Notes (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 Notes, and in each case, to use its
reasonable best efforts to cause such registration statement to be declared
effective.
7. AUTHORIZATION OF THE SECURITIES AND THE EXCHANGE
SECURITIES
The Notes 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 and 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. The Guaranties
of the Notes and the Exchange Notes are in the forms contemplated by the
Indenture, have been duly authorized for issuance and sale pursuant to this
Agreement and the Indenture and, at the Closing Date, the Guaranties of the
Notes will have been duly executed by each of the Guarantors and, when the Notes
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 each Guarantor, 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.
8. AUTHORIZATION OF THE INDENTURE
The Indenture has been duly authorized by the Company and the
Guarantors and, at the Closing Date, will have been duly executed and delivered
by the Company and the Guarantors and will constitute 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,
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insolvency, reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable
principles.
9. DESCRIPTION OF THE SECURITIES AND THE INDENTURE
The Notes, the Exchange Notes, the Guaranties of the Notes and of the
Exchange Notes and the Indenture will conform in all material respects to the
respective statements relating thereto contained in the Offering Memorandum.
10. 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
the Company and its subsidiaries, considered as one entity (any such change is
called a "Material Adverse Change"); (ii) the Company 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; and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Company or, except for
dividends paid to the Company or other subsidiaries, any of its subsidiaries on
any class of capital stock or repurchase or redemption by the Company or any of
its subsidiaries of any class of capital stock.
11. INDEPENDENT ACCOUNTANTS
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have expressed their opinion with respect to
the financial statements (which term as used in this Agreement includes the
related notes thereto) and supporting schedules of the Company and its
subsidiaries included 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. Price Waterhouse, who have expressed their
opinion with respect to the financial statements (which term as used in this
Agreement includes the related notes thereto) and supporting schedules of ▇▇▇▇▇▇
▇▇▇▇▇ plc included 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.
12. PREPARATION OF THE FINANCIAL STATEMENTS
The financial statements of the Company and ▇▇▇▇▇▇ ▇▇▇▇▇ plc, together
with the related notes, included in the Offering Memorandum present fairly the
consolidated financial position of the Company and its subsidiaries and of
▇▇▇▇▇▇ ▇▇▇▇▇ plc 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 the Company 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 financial statements of
▇▇▇▇▇▇ ▇▇▇▇▇ plc have been prepared in conformity with accounting principles
generally accepted in the United Kingdom applied on a basis consistent
throughout the periods involved, except as may be expressly stated in the
related notes thereto. The historical financial data set forth in the Offering
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Memorandum under the captions "Offering Memorandum Summary--Summary Historical
and Pro Forma Financial Data" and "Selected Financial Data" fairly present the
information set forth therein on a basis consistent with that of the audited
financial statements contained in the Offering Memorandum. The pro forma
consolidated financial statements of the Company and its subsidiaries and the
related notes thereto included under the captions "Offering Memorandum
Summary--Summary Historical and Pro Forma Financial Data" and "Unaudited Pro
Forma Financial Statements" and elsewhere in the Offering Memorandum present
fairly the information contained therein, have been prepared in accordance with
the Commission's rules and guidelines with respect to pro forma financial
statements and have been properly presented on the bases described therein, and
the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions and
circumstances referred to therein.
13. INCORPORATION AND GOOD STANDING OF THE COMPANY AND ITS
SUBSIDIARIES
Each of the Company, the Guarantors and each other Significant
Subsidiary (as that term is defined in Rule 102(w) of Regulation S-X under the
Securities Act of 1933) 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 their respective
obligations under each of this Agreement, the Registration Rights Agreement, the
DTC Agreement, the Notes, the Exchange Notes, the Guaranties and the Indenture.
Each of the Company, the Guarantors and each other Significant Subsidiary is
duly qualified as a foreign corporation 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 has been duly
authorized and validly issued, is fully paid and nonassessable and is owned by
the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance or claim (except for those set
forth in the Offering Memorandum and such other security interest, mortgage,
pledge, lien, encumbrance or claim that would not reasonably be expected to have
a Material Adverse Change). The Company does not own or control, directly or
indirectly, any corporation, association or other entity other than the
subsidiaries listed in Exhibit A hereto.
14. CAPITALIZATION AND OTHER CAPITAL STOCK MATTERS
At March 31, 1999, on a consolidated basis, after giving pro forma
effect to the issuance and sale of the Notes pursuant hereto, the Company 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 and stock
purchase agreements described in the Offering Memorandum or upon exercise of
outstanding options described in the Offering Memorandum). The Company's
authorized capital stock (the "Common Stock") conforms in all material respects
to the description thereof set forth in the Offering Memorandum. All of the
outstanding shares of Common Stock have been duly authorized and validly issued,
are fully paid and nonassessable and have been issued in compliance with federal
6
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 the Company. There are
no authorized or outstanding options, warrants, preemptive rights, rights of
first refusal or other rights to purchase, or equity or debt securities
convertible into or exchangeable or exercisable for, any capital stock of the
Company or any of its subsidiaries other than those described in the Offering
Memorandum. The description of the Company's stock option, stock purchase and
other stock plans or arrangements, and the options or other rights granted
thereunder, set forth in the Offering Memorandum describes such plans,
arrangements, options and rights in all material respects.
15. NON-CONTRAVENTION OF EXISTING INSTRUMENTS; NO FURTHER
AUTHORIZATIONS OR APPROVALS REQUIRED
Neither the Company nor any of the Guarantors or any other Significant
Subsidiary 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 or other instrument to which the Company, the Guarantors or any other
Significant Subsidiary is a party or by which it or any of them may be bound
(including, without limitation, the Senior Credit Facility (as defined in the
Offering Memorandum)), or to which any of the property or assets of the Company,
the Guarantors or any of its 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 of this
Agreement, the Registration Rights Agreement, the DTC Agreement, and the
Indenture, and the issuance and delivery of the Securities and the Exchange
Securities, 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
or a Debt Repayment Triggering Event (as defined below) 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, Debt Repayment
Triggering Events, 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 of this Agreement, the Registration Rights Agreement, the DTC
Agreement or the Indenture, the Guaranties or the issuance and delivery of the
Notes or the Exchange Notes, or consummation of the transactions contemplated
hereby and thereby and by the Offering Memorandum, except (x) 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 (y) such
7
as may be required by federal and state securities laws with respect to the
Company's obligations under the Registration Rights Agreement. As used herein, a
"Debt Repayment Triggering Event" means any event or condition that gives, or
with the passage of time would give, the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such person's behalf) the
right to require the repurchase, redemption or repayment of all or a portion of
such indebtedness by the Company or any of its subsidiaries.
16. 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 Significant Subsidiary, (ii) which has as the subject
thereof any property owned or leased by the Company, the Guarantors or any other
Significant Subsidiary, 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 and (B) any such
action, suit or proceeding, if so determined adversely, would reasonably be
expected to result in a Material Adverse Change or 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, exists or, to the best of the Company's knowledge, is
threatened or imminent.
17. 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 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.
18. ALL NECESSARY PERMITS, ETC.
Except as otherwise disclosed in the Offering Memorandum, the Company,
the Guarantors and each other Significant Subsidiary possess all material
certificates, authorizations or permits necessary to conduct their respective
businesses, and neither the Company nor any subsidiary 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.
19. TITLE TO PROPERTIES
The Company 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 1(l) 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
8
in the Offering Memorandum or such as do not materially and adversely affect the
value of or materially interfere with the use made or proposed to be made of
such property by the Company or such subsidiary. The real property,
improvements, equipment and personal property held under lease by the Company 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 the Company or such subsidiary.
20. TAX LAW COMPLIANCE
The Company and its consolidated subsidiaries have filed all necessary
federal, state and foreign income and franchise tax returns and have paid all
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. The Company has
made adequate charges, accruals and reserves in the applicable financial
statements referred to in Section 1(l) above in respect of all federal, state
and foreign income and franchise taxes for all periods as to which the tax
liability of the Company or any of its consolidated subsidiaries has not been
finally determined.
21. COMPANY NOT AN "INVESTMENT COMPANY"
The Company is not, and after receipt of payment for the Notes will not
be, an "investment company" within the meaning of Investment Company Act of 1940
(the "Investment Company Act") and will conduct its business in a manner so that
it will not become subject to the Investment Company Act.
22. NO PRICE STABILIZATION OR MANIPULATION
The Company has not taken and will not 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 Notes.
23. SOLVENCY
The Company is, and immediately after the Closing Date will be,
Solvent. As used herein, the term "Solvent" means, with respect to the Company
on a particular date, that on such date (i) the fair market value of the assets
of the Company is greater than the total amount of liabilities (including
contingent liabilities) of the Company, (ii) the present fair salable value of
the assets of the Company is greater than the amount that will be required to
pay the probable liabilities of the Company on its debts as they become absolute
and matured, (iii) the Company is able to realize upon its assets and pay its
debts and other liabilities, including contingent obligations, as they mature
and (iv) the Company does not have unreasonably small capital.
24. NO UNLAWFUL CONTRIBUTIONS OR OTHER PAYMENTS
Except as otherwise disclosed in the Offering Memorandum, neither the
Company nor any of its subsidiaries nor, to the best of the Company's knowledge,
any employee or agent of the Company 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.
25. COMPANY'S ACCOUNTING SYSTEM
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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.
26. RELATED PARTY TRANSACTIONS
There are no business relationships or related-party transactions
involving the Company, the Guarantors or any other person that would be required
by Item 404 of Regulation S-K to be described in the Offering Memorandum were it
to be filed as a part of a Registration Statement on Form S-1 under the
Securities Act, which have not been described as would have been so required.
27. NO DEFAULT IN SENIOR INDEBTEDNESS
No event of default exists under any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument constituting Senior
Debt (as defined in the Indenture).
28. 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 the Company 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 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
the Company or its subsidiaries under applicable Environmental Laws, nor has the
Company or any of its subsidiaries received any written communication, whether
from a governmental authority, citizens group, employee or otherwise, that
alleges that the Company 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 of which the Company has been served,
notified, or otherwise made aware, 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 the Company
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
the Company or any of its
10
subsidiaries or any person or entity whose liability for such Environmental
Claim the Company 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 an Environmental Claim against the Company or any of its
subsidiaries or against any person or entity whose liability for such
Environmental Claim the Company or any of its subsidiaries has retained or
assumed either contractually or by operation of law.
29. PERIODIC REVIEW OF COSTS OF ENVIRONMENTAL COMPLIANCE
In the ordinary course of its business, the Company monitors the effect
of Environmental Laws on the business, operations and properties of the Company
and its subsidiaries, and 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 monitoring 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.
30. ERISA COMPLIANCE
The Company 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,
"ERISA")) established or maintained by the Company, 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 a Material Adverse Change. "ERISA Affiliate" means, with respect to
the Company 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 the Company 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 the
Company, its subsidiaries or any of their ERISA Affiliates. No "employee benefit
plan" established or maintained by the Company, 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 the Company, 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.
31. REGULATION S REQUIREMENTS
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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).
The Securities sold in reliance on Regulation S will be represented
upon issuance by a temporary global security that may not be exchanged for
definitive securities until the expiration of the 40-day restricted period
referred to in Rule 903(b)(3) of the Securities Act and only upon certification
of beneficial ownership of such Securities by non-U.S. persons or U.S. persons
who purchased such Securities in transactions that were exempt from the
registration requirements of 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.
SECTION
1. PURCHASE, SALE AND DELIVERY OF THE SECURITIES.
1. THE SECURITIES
The Company agrees to issue and sell to the several Initial Purchasers,
severally and not jointly, all of the Notes upon the terms herein set forth. On
the basis of the representations, warranties and agreements herein contained,
and upon the terms but subject to the conditions herein set forth, the Initial
Purchasers agree, severally and not jointly, to purchase from the Company the
aggregate principal amount of Notes set forth opposite their names on SCHEDULE
A, at a purchase price of ___% of the principal amount thereof payable on the
Closing Date.
2. THE CLOSING DATE
Delivery of certificates for the Notes in definitive form to be
purchased by the Initial Purchasers and payment therefor shall be made at the
Chicago offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (or such other place as may be agreed to by
the Company and the Initial Purchasers) at 10:00 a.m. Chicago time, on May 28,
1999, or such other time and date as the Initial Purchasers and the Company
shall agree (the time and date of such closing are called the "Closing Date").
3. DELIVERY OF THE NOTES
The Company shall deliver, or cause to be delivered, to Banc of America
Securities LLC for the accounts of the several Initial Purchasers certificates
for the Notes at the Closing Date against the irrevocable release of a wire
transfer of immediately available funds for the amount of the purchase price
therefor. The certificates for the Notes shall be in such denominations and
registered in the name of Cede & Co., as nominee of the Depository, pursuant to
the DTC Agreement, and shall be made available for inspection on the business
day preceding the Closing Date at a location in Chicago, as the Initial
Purchasers may designate. Time shall be of the essence, and delivery at the
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time and place specified in this Agreement is a further condition to the
obligations of the Initial Purchasers.
4. DELIVERY OF OFFERING MEMORANDUM TO THE INITIAL PURCHASERS
Not later than 12:00 p.m. Chicago time on the second business day
following the date of this Agreement, the Company shall deliver or cause to be
delivered copies of the Offering Memorandum in such quantities and at such
places as the Initial Purchasers shall reasonably request.
5. INITIAL PURCHASERS AS QUALIFIED INSTITUTIONAL BUYERS
Each Initial Purchaser, severally and not jointly, represents and
warrants to, and agrees with, the Company that it is a "qualified institutional
buyer" within the meaning of Rule 144A (a "Qualified Institutional Buyer").
SECTION
1. ADDITIONAL COVENANTS
The Company and the Guarantors further covenant and agree with each
Initial Purchaser as follows:
1. INITIAL PURCHASERS' REVIEW OF PROPOSED AMENDMENTS AND
SUPPLEMENTS
Prior to amending or supplementing the Offering Memorandum, the Company
shall furnish to the Initial Purchasers for review a copy of each such proposed
amendment or supplement, and the Company shall not use any such proposed
amendment or supplement to which the Initial Purchasers reasonably object.
2. AMENDMENTS AND SUPPLEMENTS TO THE OFFERING MEMORANDUM AND
OTHER SECURITIES ACT MATTERS
If, prior to the completion of the placement of the Notes by the
Initial Purchasers with the Subsequent Purchasers, any event shall occur or
condition exist as a result of which it is necessary to amend or supplement the
Offering Memorandum in order to make the statements therein, in the light of the
circumstances when the Offering Memorandum is delivered to a Subsequent
Purchaser, not misleading, or if in the written opinion of the Initial
Purchasers or counsel for the Initial Purchasers it is otherwise necessary to
amend or supplement the Offering Memorandum to comply with applicable law, the
Company agrees to promptly prepare (subject to Section 3(a) hereof), and furnish
at its own expense to the Initial Purchasers, amendments or supplements to the
Offering Memorandum so that the statements in the Offering Memorandum as so
amended or supplemented will not, in the light of the circumstances when the
Offering Memorandum is delivered to a Subsequent Purchaser, be misleading or so
that the Offering Memorandum, as amended or supplemented, will comply with
applicable law.
Following the consummation of the Exchange Offer or the effectiveness
of the shelf registration statement and for so long as the Securities are
outstanding if, in the reasonable judgment of the Initial Purchasers, the
Initial Purchasers or any of their affiliates (as such term is defined in the
rules and regulations under the Securities Act) are required to deliver a
prospectus in connection with sales of, or market-making activities with respect
to, such securities, (i) to periodically amend
13
the applicable registration statement so that the information contained therein
complies with the requirements of Section 10(a) of the Securities Act, (ii) to
amend the applicable registration statement or supplement the related prospectus
or the documents incorporated therein when necessary to reflect any material
changes in the information provided therein so that the registration statement
and the prospectus will not contain 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 as of the date the
prospectus is so delivered, not misleading and (iii) to provide the Initial
Purchasers with copies of each amendment or supplement filed and such other
documents as the Initial Purchasers may reasonably request.
The Company hereby expressly acknowledges that the indemnification and
contribution provisions of Sections 8 and 9 hereof are specifically applicable
and relate to each offering memorandum, registration statement, prospectus,
amendment or supplement referred to in this Section 3(b).
3. COPIES OF THE OFFERING MEMORANDUM
The Company agrees to furnish the Initial Purchasers, without charge,
as many copies of the Offering Memorandum and any amendments and supplements
thereto as they shall have reasonably requested, provided that such requests are
made prior to the original printing of the Offering Memorandum or any amendment
or supplement thereto.
4. BLUE SKY COMPLIANCE
The Company shall cooperate with the Initial Purchasers and counsel for
the Initial Purchasers to qualify or register the Notes for sale under (or
obtain exemptions from the application of) the Blue Sky or state securities laws
of those jurisdictions designated by the Initial Purchasers, shall comply with
such laws and shall continue such qualifications, registrations and exemptions
in effect so long as required for the distribution of the Notes. The Company
shall not be required to qualify as a foreign corporation or to take any action
that would subject it to general service of process in any such jurisdiction
where it is not presently qualified or where it would be subject to taxation as
a foreign corporation. The Company will advise the Initial Purchasers promptly
of the suspension of the qualification or registration of (or any such exemption
relating to) the Notes for offering, sale or trading in any jurisdiction or any
initiation or threat of any proceeding for any such purpose, and in the event of
the issuance of any order suspending such qualification, registration or
exemption, the Company shall use its best efforts to obtain the withdrawal
thereof at the earliest possible moment.
5. USE OF PROCEEDS
The Company shall apply the net proceeds from the sale of the Notes
sold by it in the manner described under the caption "Use of Proceeds" in the
Offering Memorandum.
6. THE DEPOSITORY
The Company will cooperate with the Initial Purchasers and use its best
efforts to permit the Securities to be eligible for clearance and settlement
through the facilities of the Depository.
7. ADDITIONAL ISSUER INFORMATION
14
At any time when the Company is not subject to Section 13 or 15(d) of
the Exchange Act, the Company, for the benefit of holders and beneficial owners
from time to time of Notes, shall furnish, at its expense, upon request, to
holders and beneficial owners of Notes and prospective purchasers of Securities
information ("Additional Issuer Information") satisfying the requirements of
subsection (d)(4) of Rule 144A.
8. FUTURE REPORTS TO THE INITIAL PURCHASERS
For so long as any Notes or Exchange Notes remain outstanding, the
Company will furnish to Banc of America Securities LLC (i) as soon as reasonably
practicable after the end of each fiscal year, copies of the Annual Report of
the Company containing the balance sheet of the Company as of the close of such
fiscal year and statements of operations, stockholders' investment and cash
flows for the year then ended and the opinion thereon of the Company's
independent public or certified public accountants; (ii) as soon as reasonably
practicable after the filing thereof, copies of each proxy statement, Annual
Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K
or other report filed by the Company with the Commission, the National
Association of Securities Dealers, Inc. or any securities exchange; and (iii) as
soon as available, copies of any report or communication of the Company mailed
generally to holders of its capital stock or debt securities (including the
holders of the Notes).
9. NO INTEGRATION
The Company agrees that it will not and will use its best efforts to
cause its affiliates not to make any offer or sale of securities of the Company
of any class if, as a result of the doctrine of "integration" referred to in
Rule 502 under the Securities Act, such offer or sale would render invalid (for
the purpose of (i) the sale of the Notes by the Company to the Initial
Purchasers, (ii) the resale of the Notes by the Initial Purchasers to Subsequent
Purchasers or (iii) the resale of the Notes by such Subsequent Purchasers to
others) the exemption from the registration requirements of the Securities Act
provided by Section 4(2) thereof or by Rule 144A or by Regulation S thereunder
or otherwise.
10. LEGENDED SECURITIES
Each certificate for a Note will bear the legend contained in "Notice
to Investors" in the Offering Memorandum for the time period and upon the other
terms stated in the Offering Memorandum.
11. PORTAL
The Company will use its reasonable best efforts to cause the Notes to
be eligible for the National Association of Securities Dealers, Inc. PORTAL
market (the "PORTAL market").
12. USURY
The Company and the Guarantors agree not to voluntarily claim, and to
resist actively any attempts to claim the benefits of any usury laws against the
holders of any Securities.
13. DUE DILIGENCE
In connection with the original distribution of the Securities, the
Company agrees that, prior to any offer or resale of the Securities by the
Initial Purchasers, the Initial Purchasers and counsel
15
for the Initial Purchasers shall have the right to make reasonable inquiries
during normal business hours into the business of the Company.
Banc of America Securities LLC, on behalf of the several Initial
Purchasers, may, in its sole discretion, waive in writing the performance by the
Company of any one or more of the foregoing covenants or extend the time for
their performance.
SECTION
1. PAYMENT OF EXPENSES
The Company agrees to pay all costs, fees and expenses incurred in
connection with the performance of its obligations hereunder and in connection
with the transactions contemplated hereby, including without limitation (i) all
expenses incident to the issuance and delivery of the Notes (including all
printing and engraving costs), (ii) all necessary issue, transfer and other
stamp taxes in connection with the issuance and sale of the Notes to the Initial
Purchasers, (iii) all fees and expenses of the Company's and the Guarantors'
counsel, independent public or certified public accountants and other advisors,
(iv) all costs and expenses incurred in connection with the preparation,
printing, filing, shipping and distribution of each Preliminary Offering
Memorandum and the Offering Memorandum (including financial statements and
exhibits), and all amendments and supplements thereto, (v) all filing fees,
reasonable attorneys' fees and expenses incurred by the Company or the Initial
Purchasers in connection with qualifying or registering (or obtaining exemptions
from the qualification or registration of), all or any part of the Securities
for offer and sale under the Blue Sky laws and, if requested by the Initial
Purchasers, preparing and printing a "Blue Sky Survey" or memorandum, and any
supplements thereto, advising the Initial Purchasers of such qualifications,
registrations and exemptions, (vi) the fees and expenses of the Trustee,
including the reasonable fees and disbursements of counsel for the Trustee and
in connection with the Indenture, the Notes and the Exchange Notes, (vii) any
fees payable in connection with the rating of the Notes or the Exchange Notes
with the rating agencies and the listing of the Notes with the PORTAL market,
(viii) all fees and expenses (including reasonable fees and expenses of counsel)
of the Company and the Guarantors in connection with approval of the Notes by
DTC for "book-entry" transfer, (ix) all roadshow expenses of the Company's
representatives and (x) the performance by the Company and the Guarantors of
their respective other obligations under this Agreement. Except as provided in
this Section 4, Section 6, Section 8 and Section 9 hereof, the Initial
Purchasers shall pay their own expenses, including the fees and disbursements of
their counsel.
SECTION 1.0.1. CONDITIONS OF THE OBLIGATIONS OF THE INITIAL PURCHASERS
The obligations of the several Initial Purchasers to purchase and pay
for the Notes, as provided herein on the Closing Date shall be subject to the
accuracy of the representations and warranties on the part of the Company and
the Guarantors set forth in Section 1 hereof as of the date hereof and as of the
Closing Date as though then made and to the timely performance by the Company
and the Guarantors of their respective covenants and other obligations
hereunder, and to each of the following additional conditions:
1. ACCOUNTANTS' COMFORT LETTER
16
On the date hereof, the Initial Purchasers shall have received from
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public or certified public accountants for the
Company, a letter dated the date hereof addressed to the Initial Purchasers, in
form and substance reasonably satisfactory to the Initial Purchasers, containing
statements and information of the type ordinarily included in accountant's
"comfort letters" to Initial Purchasers, delivered according to Statement of
Auditing Standards Nos. 72 and 76 (or any successor bulletins), with respect to
the audited and unaudited financial statements and certain financial information
contained in the Offering Memorandum.
2. NO MATERIAL ADVERSE CHANGE OR RATINGS AGENCY CHANGE
For the period from and after the date of this Agreement and prior to
the Closing Date:
3. in the judgment of the Initial Purchasers there
shall not have occurred any Material Adverse Change, the effect of
which, in the sole judgment of the Initial Purchasers, makes it
impracticable or inadvisable to proceed with the offering, or the
delivery of Securities on the terms and in the manner contemplated by
the Offering Memorandum and this Agreement; and
4. there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded
any securities of the Company or any of its subsidiaries by any
"nationally recognized statistical rating organization" as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act.
5. OPINION OF COUNSEL FOR THE COMPANY
On the Closing Date the Initial Purchasers shall have received the
opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, dated as of such Closing
Date, in form and substance satisfactory to the Initial Purchasers and their
counsel.
6. OPINION OF COUNSEL FOR THE INITIAL PURCHASERS
On the Closing Date the Initial Purchasers shall have received the
opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial Purchasers, dated as of
such Closing Date, with respect to such matters as may be reasonably requested
by the Initial Purchasers and are customary in this type of financing.
7. OFFICERS' CERTIFICATE
On the Closing Date the Initial Purchasers shall have received a
written certificate executed by the Chairman of the Board, Chief Executive
Officer or President of the Company and the Chief Financial Officer or Chief
Accounting Officer of the Company, dated as of the Closing Date, to the effect
set forth in subsection (b)(ii) of this Section 5, and further to the effect
that:
8. for the period from and after the date of this
Agreement and prior to the Closing Date, there has not, to their
knowledge, occurred any Material Adverse Change;
17
9. the representations, warranties and covenants of
the Company and the Guarantors set forth in Section 1 of this Agreement
are true and correct with the same force and effect as though expressly
made on and as of the Closing Date; and
10. the Company and the Guarantors have complied in
all material respects with all the agreements and satisfied all the
conditions on their respective parts to be performed or satisfied at or
prior to the Closing Date.
11. BRING-DOWN COMFORT LETTER
On the Closing Date the Initial Purchasers shall have received from
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public or certified public accountants for the
Company, a letter dated such date, in form and substance reasonably satisfactory
to the Initial Purchasers, to the effect that they reaffirm the statements made
in the letter furnished by them pursuant to subsection (a) of this Section 5,
except that the specified date referred to therein for the carrying out of
procedures shall be no more than three business days prior to the Closing Date.
12. PORTAL LISTINGS
At the Closing Date the Notes shall have been designated for trading on
the PORTAL market.
13. INDENTURE
On the Closing Date the Company and the Guarantors shall have executed
and delivered the Indenture.
14. REGISTRATION RIGHTS AGREEMENT
The Company and the Guarantors shall have entered into the Registration
Rights Agreement and the Initial Purchasers shall have received executed
counterparts thereof.
15. ADDITIONAL DOCUMENTS
On or before the Closing Date, the Initial Purchasers and counsel
for the Initial Purchasers shall have received such information, documents
and opinions as they may reasonably require for the purposes of enabling them
to pass upon the issuance and sale of the Securities as contemplated herein,
or in order to evidence the accuracy of any of the representations and
warranties, or the satisfaction of any of the conditions or agreements,
herein contained.
If any condition specified in this Section 5 is not satisfied when and
as required to be satisfied, this Agreement may be terminated by the Initial
Purchasers by notice to the Company at any time on or prior to the Closing Date,
which termination shall be without liability on the part of any party to any
other party, except that Section 4, Section 6, Section 8 and Section 9 shall at
all times be effective and shall survive such termination.
SECTION
1. REIMBURSEMENT OF INITIAL PURCHASERS' EXPENSES
18
If this Agreement is terminated by the Initial Purchasers pursuant to
Section 5, or if the sale to the Initial Purchasers of the Securities on the
Closing Date is not consummated because of any refusal, inability or failure on
the part of the Company to perform any agreement herein or to comply with any
provision hereof, the Company agrees to reimburse the Initial Purchasers (or
such Initial Purchasers as have terminated this Agreement for any of the
foregoing reasons with respect to themselves), severally, upon demand for all
out-of-pocket expenses that shall have been reasonably incurred by the Initial
Purchasers in connection with the proposed purchase and the offering and sale of
the Securities, including but not limited to reasonable fees and disbursements
of counsel, printing expenses, travel expenses, postage, facsimile and telephone
charges.
SECTION 1.0.1. OFFER, SALE AND RESALE PROCEDURES
Each of the Initial Purchasers, on the one hand, and the Company and
each of the Guarantors, on the other hand, hereby establish and agree to observe
the following procedures in connection with the offer and sale of the
Securities:
1. OFFERS AND SALES ONLY TO QUALIFIED INSTITUTIONAL BUYERS
AND NON-US PERSONS
Offers and sales of the Securities will be made only by the Initial
Purchasers or affiliates thereof qualified to do so in the jurisdictions in
which such offers or sales are made. Each such offer or sale shall only be made
to persons whom the offeror or seller reasonably believes to be (i) qualified
institutional buyers (as defined in Rule 144A under the Securities Act) or (ii)
non-U.S. persons outside the United States to whom the offeror or seller
reasonably believes offers and sales of the Securities may be made in reliance
upon Regulation S under the Securities Act, upon the terms and conditions set
forth in ANNEX I hereto, which ANNEX I is hereby expressly made a part hereof.
2. NO GENERAL SOLICITATION
The Securities will be offered by approaching prospective Subsequent
Purchasers on an individual basis. No general solicitation or general
advertising (within the meaning of Rule 502(c) under the Securities Act) will be
used in the United States in connection with the offering of the Securities.
3. RESTRICTIONS ON TRANSFER
Upon original issuance by the Company, and until such time as the same
is no longer required under the applicable requirements of the Securities Act,
the Securities (and all securities issued in exchange therefor or in
substitution thereof, other than the Exchange Securities) shall bear the
following legend:
"THE NOTE (OR ITS PREDECESSORS) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ SECURITIES ACT OF 1933,
AS AMENDED, AND THE NOTE EVIDENCED HEREBY MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE NOTE EVIDENCED HEREBY IS HEREBY NOTIFIED THAT
THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES
19
ACT PROVIDED BY RULE 144A THEREUNDER OR ANOTHER EXEMPTION
UNDER THE SECURITIES ACT. THE HOLDER OF THE NOTE EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH
NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY
(I)(A) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT), IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A UNDER THE SECURITIES ACT, (B) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT,
(C) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF REGULATION
S UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1),(2),(3)
OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT, PRIOR
TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
THE NOTES (THE FORM OF SUCH LETTER CAN BE OBTAINED FROM THE
TRUSTEE), OR (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT PROVIDED THAT
IN THE CASE OF A TRANSFER PURSUANT TO CLAUSE (E) SUCH TRANSFER
IS EFFECTED BY THE DELIVERY TO THE TRANSFEREE OF DEFINITIVE
SECURITIES REGISTERED IN ITS NAME (OR ITS NOMINEE'S NAME) IN
THE BOOKS MAINTAINED BY THE REGISTRAR, AND IS SUBJECT TO THE
RECEIPT BY THE REGISTRAR (AND THE COMPANY, IF THEY SO REQUEST)
OF A CERTIFICATION OF THE TRANSFEROR AND AN OPINION OF COUNSEL
TO THE EFFECT THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (II) TO THE COMPANY OR (III) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND,
IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
NOTE EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN
(A) ABOVE."
Following the sale of the Securities by the Initial Purchasers to
Subsequent Purchasers pursuant to the terms hereof, the Initial Purchasers shall
not be liable or responsible to the Company for any losses, damages or
liabilities suffered or incurred by the Company, including any losses, damages
or liabilities under the Securities Act, arising from or relating to any resale
or transfer of any Security.
SECTION
20
1. INDEMNIFICATION.
1. INDEMNIFICATION OF THE INITIAL PURCHASERS
The Company and the Guarantors (for purposes of Sections 8, 9 and 10 of
this Agreement, the term Company shall include the Guarantors), jointly and
severally, agree to indemnify and hold harmless each Initial Purchaser, its
directors, officers and employees, and each person, if any, who controls any
Initial Purchaser within the meaning of the Securities Act and the Exchange Act
against any loss, claim, damage, liability or expense, as incurred, to which
such Initial Purchaser or such controlling person may become subject, under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Company), insofar as such loss, claim, damage, liability or expense (or actions
in respect thereof as contemplated below) arises out of or is 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 or
supplement thereto), or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and to reimburse each
Initial Purchaser and each such controlling person for any and all expenses
(including the reasonable fees and disbursements of counsel chosen by Banc of
America Securities LLC) as such expenses are reasonably incurred by such Initial
Purchaser or such controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action; PROVIDED, HOWEVER, that the foregoing indemnity
agreement shall not apply to any loss, claim, damage, liability or expense to
the extent, but only to the extent, arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with written information furnished to the
Company by the Initial Purchasers expressly for use in any Preliminary Offering
Memorandum or the Offering Memorandum (or any amendment or supplement thereto);
PROVIDED FURTHER, HOWEVER, that the indemnification contained in this paragraph
(a) with respect to the Preliminary Offering Memorandum shall not inure to the
benefit of the Initial Purchasers (or to the benefit of any person controlling
the Initial Purchasers) on account of any such loss, claim, damage, liability or
expense arising from the sale of the Securities by the Initial Purchasers to any
person if a copy of the Offering Memorandum (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) shall
not have been delivered or sent to such person and each untrue statement of a
material fact contained in, and each omission or alleged omission of a material
fact from, such Preliminary Offering Memorandum was corrected in the Offering
Memorandum (as so amended or supplemented) and it shall have been determined
that any Initial Purchaser and each person, if any, who controls such Initial
Purchasers would not have incurred such losses, claims, damages, liabilities and
expenses had the Offering Memorandum been delivered or sent. The indemnity
agreement set forth in this Section 8(a) shall be in addition to any liabilities
that the Company may otherwise have.
2. INDEMNIFICATION OF THE COMPANY, ITS DIRECTORS AND
OFFICERS
Each Initial Purchaser agrees, severally and not jointly, to indemnify
and hold harmless the Company and each of its directors and each person, if any,
who controls the Company within the meaning of the Securities Act or the
Exchange Act, against any loss, claim, damage, liability or
21
expense, as incurred, to which the Company or any such director, or controlling
person may become subject, under the Securities Act, the Exchange Act, or other
federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with
the written consent of such Initial Purchaser), insofar as such loss, claim,
damage, liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based upon any untrue or alleged untrue statement of
a material fact contained in any Preliminary Offering Memorandum or the Offering
Memorandum (or any amendment or supplement thereto), or arises out of or is
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Preliminary Offering Memorandum or the Offering Memorandum (or any
amendment or supplement thereto), in reliance upon and in conformity with
written information furnished to the Company by the Initial Purchasers expressly
for use therein; and to reimburse the Company, or any such director or
controlling person for any legal and other expenses reasonably incurred by the
Company, or any such director or controlling person in connection with
investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action. The Company hereby acknowledges that the
only information that the Initial Purchasers have furnished to the Company
expressly for use in any Preliminary Offering Memorandum or the Offering
Memorandum (or any amendment or supplement thereto) are the statements set forth
in the first sentence of the third paragraph, the first two sentences of the
fourth paragraph, the third, fourth and fifth sentences of the fifth paragraph,
the seventh paragraph and the first six sentences of the eighth paragraph under
the caption "Plan of Distribution" in the Offering Memorandum; and the Initial
Purchasers confirm that such statements are correct. The indemnity agreement set
forth in this Section 8(b) shall be in addition to any liabilities that each
Initial Purchaser may otherwise have.
3. NOTIFICATIONS AND OTHER INDEMNIFICATION PROCEDURES
Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof,
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party (for contribution or
otherwise) under the indemnity agreement contained in this Section 8 except to
the extent the indemnifying party is prejudiced as a proximate result of such
failure. In case any such action is brought against any indemnified party and
such indemnified party seeks or intends to seek indemnity from an indemnifying
party, the indemnifying party will be entitled to participate in and, to the
extent that it shall elect, jointly with all other indemnifying parties
similarly notified, by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party; PROVIDED, HOWEVER, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that a conflict may arise
between the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying
22
party, the indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of such
indemnifying party's election so to assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying party will not be
liable to such indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (together with local counsel),
approved by the indemnifying party (Banc of America Securities LLC in the case
of Section 8(b) and Section 9), representing the indemnified parties who are
parties to such action) or (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action, in each of
which cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
4. SETTLEMENTS
The indemnifying party under this Section 8 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 nonappealable judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party
against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by Section
8(c) hereof, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement or delivered notice to the indemnified party of its good
faith objection to such claim of indemnification. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or
consent includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action, suit or
proceeding.
SECTION
1. CONTRIBUTION
If the indemnification provided for in Section 8 is for any reason held
to be unavailable to or otherwise insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount paid or payable by such indemnified party, as incurred, as a
result of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is
23
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Initial Purchasers, on the other hand, from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and the
Initial Purchasers, on the other hand, in connection with the statements or
omissions or inaccuracies in the representations and warranties herein which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received by
the Company, on the one hand, and the Initial Purchasers, on the other hand, in
connection with the offering of the Securities pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Company, and the total discount received by the
Initial Purchasers bear to the aggregate initial offering price of the
Securities. The relative fault of the Company, on the one hand, and the Initial
Purchasers, on the other hand, shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact or any such inaccurate
or alleged inaccurate representation or warranty relates to information supplied
by the Company, on the one hand, or the Initial Purchasers, on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 8(c), any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth in
Section 8(c) with respect to notice of commencement of any action shall apply if
a claim for contribution is to be made under this Section 9; PROVIDED, HOWEVER,
that no additional notice shall be required with respect to any action for which
notice has been given under Section 8(c) for purposes of indemnification.
The Company and the Initial Purchasers agree that it would not be just
and equitable if contribution pursuant to this Section 9 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 which does not take account
of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Initial Purchaser
shall be required to contribute any amount in excess of the discount received by
such Initial Purchaser in connection with the Securities distributed by it. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Initial Purchasers'
obligations to contribute pursuant to this Section 9 are several, and not joint,
in proportion to their respective commitments as set forth opposite their names
in SCHEDULE A. For purposes of this Section 9, each director, officer and
employee of an Initial Purchaser and each person, if any, who controls an
Initial Purchaser within the meaning of the Securities Act and the Exchange Act
shall have the same rights to contribution as such Initial Purchaser, and each
director of the Company, and each person, if any,
24
who controls the Company with the meaning of the Securities Act and the Exchange
Act shall have the same rights to contribution as the Company.
SECTION 1.0.1. TERMINATION OF THIS AGREEMENT
Prior to the Closing Date, this Agreement may be terminated by the
Initial Purchasers by notice given to the Company if at any time (i) trading in
securities generally on either the NASDAQ Stock Market or the New York Stock
Exchange shall have been suspended or limited, or minimum or maximum prices
shall have been generally established on any of such stock exchanges by the
Commission or the NASD; (ii) a general banking moratorium shall have been
declared by any federal or New York authorities; (iii) there shall have occurred
any outbreak or escalation of national or international hostilities or any
crisis or calamity, or any change in the United States or international
financial markets, or any substantial change or development involving a
prospective substantial change in United States' or international political,
financial or economic conditions, as in the judgment of the Initial Purchasers
is material and adverse and makes it impracticable to market the Securities in
the manner and on the terms described in the Offering Memorandum or to enforce
contracts for the sale of securities; or (iv) in the judgment of the Initial
Purchasers there shall have occurred any Material Adverse Change, the effect of
which, in the sole judgment of the Initial Purchasers makes it impracticable or
inadvisable to proceed with the offering or the delivery of the Securities on
the terms and in the manner contemplated by the Offering Memorandum and in this
Agreement. Any termination pursuant to this Section 10 shall be without
liability on the part of (a) the Company to any Initial Purchaser, except that
the Company shall be obligated to reimburse the expenses of the Initial
Purchasers pursuant to Sections 4 and 6 hereof, (b) any Initial Purchaser to the
Company, or (c) of any party hereto to any other party except that the
provisions of Section 8 and Section 9 shall at all times be effective and shall
survive such termination.
SECTION 1.0.2. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY
The respective indemnities, agreements, representations, warranties and
other statements of the Company, of the Guarantors, of their respective officers
and of the several Initial Purchasers set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Initial Purchaser or the Company, the Guarantors or
any of its or their partners, officers or directors or any controlling person,
as the case may be, and will survive delivery of and payment for the Securities
sold hereunder and any termination of this Agreement.
SECTION 1.0.3. NOTICES
All communications hereunder shall be in writing and shall be mailed,
hand delivered or telecopied and confirmed to the parties hereto as follows:
25
If to the Initial Purchasers:
Banc of America Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
If to the Company:
▇.▇. ▇▇▇▇▇▇ Automotive Castings, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.C.
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
SECTION 1.0.4. SUCCESSORS
This Agreement will inure to the benefit of and be binding upon the
parties hereto, including any substitute Initial Purchasers pursuant to Section
16 hereof, and to the benefit of the employees, officers and directors and
controlling persons referred to in Section 8 and Section 9, and in each case
their respective successors, and no other person will have any right or
obligation hereunder. The term "successors" shall not include any purchaser of
the Securities as such from any of the Initial Purchasers merely by reason of
such purchase.
SECTION 1.0.5. PARTIAL UNENFORCEABILITY
26
The invalidity or unenforceability of any Section, paragraph or
provision of this Agreement shall not affect the validity or enforceability of
any other Section, paragraph or provision hereof. If any Section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, there shall be deemed to be made such minor changes (and only
such minor changes) as are necessary to make it valid and enforceable.
SECTION 1.0.6. AGREEMENT
1. GOVERNING LAW PROVISIONS
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN SUCH STATE.
SECTION
1. DEFAULT OF ONE OR MORE OF THE SEVERAL INITIAL PURCHASERS
If any one or more of the several Initial Purchasers shall fail or
refuse to purchase Securities that it or they have agreed to purchase hereunder
on the Closing Date, and the aggregate number of Securities which such
defaulting Initial Purchaser or Initial Purchasers agreed but failed or refused
to purchase does not exceed 10% of the aggregate number of the Securities to be
purchased on such date, the other Initial Purchasers shall be obligated,
severally, in the proportions that the number of Securities set forth opposite
their respective names on SCHEDULE A bears to the aggregate number of Securities
set forth opposite the names of all such non-defaulting Initial Purchasers, or
in such other proportions as may be specified by the Initial Purchasers with the
consent of the non-defaulting Initial Purchasers, to purchase the Securities
which such defaulting Initial Purchaser or Initial Purchasers agreed but failed
or refused to purchase on such date. If any one or more of the Initial
Purchasers shall fail or refuse to purchase Securities and the aggregate number
of Securities with respect to which such default occurs exceeds 10% of the
aggregate number of Securities to be purchased on the Closing Date, and
arrangements satisfactory to the Initial Purchasers and the Company for the
purchase of such Securities are not made within 48 hours after such default,
this Agreement shall terminate without liability of any party to any other party
except that the provisions of Section 4, Section 6, Section 8 and Section 9
shall at all times be effective and shall survive such termination. In any such
case either the Initial Purchasers or the Company shall have the right to
postpone the Closing Date, as the case may be, but in no event for longer than
seven days in order that the required changes, if any, to the Offering
Memorandum or any other documents or arrangements may be effected.
As used in this Agreement, the term "Initial Purchaser" shall be deemed
to include any person substituted for a defaulting Initial Purchaser under this
Section 16. Any action taken under this Section 16 shall not relieve any
defaulting Initial Purchaser from liability in respect of any default of such
Initial Purchaser under this Agreement.
SECTION 1.0.1. GENERAL PROVISIONS
This Agreement constitutes the entire agreement of the parties to this
Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and
27
negotiations with respect to the subject matter hereof. This Agreement may be
executed in two or more counterparts, each one of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement may not be amended or modified unless in writing by
all of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party whom the condition is meant to
benefit. The Table of Contents and the section headings herein are for the
convenience of the parties only and shall not affect the construction or
interpretation of this Agreement.
[Signature Page Follows]
28
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
Very truly yours,
▇.▇. ▇▇▇▇▇▇ AUTOMOTIVE CASTINGS, INC.
By:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President and Secretary
FRENCH HOLDINGS, INC.
By:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President and Secretary
▇.▇. ▇▇▇▇▇▇ CORPORATION
By:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President and Secretary
ALLOTECH INTERNATIONAL, INC.
By:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President and Secretary
The foregoing Purchase Agreement is hereby confirmed and accepted by
the Initial Purchasers in Chicago, Illinois as of the date first above written.
BANC OF AMERICA SECURITIES LLC
CHASE SECURITIES INC.
As the several Initial Purchasers
By: BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name:
Title:
SCHEDULE A
AGGREGATE PRINCIPAL AMOUNT
INITIAL PURCHASERS OF SECURITIES TO BE PURCHASED
------------------ -----------------------------
Banc of America Securities LLC................. $87,500,000
Chase Securities Inc........................... $87,500,000
Total:................................ $175,000,000
A-1
EXHIBIT A
---------
▇.▇. ▇▇▇▇▇▇ Automotive Castings, Inc.
French Holdings, Inc.
▇.▇. ▇▇▇▇▇▇ Corporation
Allotech International, Inc.
▇.▇. ▇▇▇▇▇▇ FSC Corporation
Automotive Components Investments Ltd.
▇▇▇▇▇▇ ▇▇▇▇▇ Limited
▇▇▇▇▇▇ ▇▇▇▇▇ Castings Limited
▇▇▇▇ (Presteigne) Limited
UJP Tools Limited
MAC Leasing Limited
Burdon & Miles Limited
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Limited
Foundry Computational Services Limited1
Ansola Acquisition Corp., SRL
Fundiciones Viuda ▇▇ ▇▇▇▇▇▇, ▇.▇.
Auxicomp Auxiliary Componentes, SL2
-------------
(1) Foundry Computational Services Limited is inactive. ▇▇▇▇▇▇ ▇▇▇▇▇ Limited
owns 51%.
(2) Ansola holds a 20% interest in Auxicomp Auxiliary Componentes, SL, which
is a German company.
A-1
ANNEX I
Resale Pursuant to Regulation S or Rule 144A. Each Initial Purchaser
understands that:
(a) Such Initial Purchaser agrees that it has not offered or
sold and will not offer or sell the Securities in the United States or to, or
for the benefit or account of, a U.S. Person (other than a distributor), in each
case, as defined in Rule 902 under the Securities Act (i) as part of its
distribution at any time and (ii) otherwise until 40 days after the later of the
commencement of the offering of the Securities pursuant hereto and the Closing
Date, other than in accordance with Regulation S of the Securities Act or
another exemption from the registration requirements of the Securities Act. Such
Initial Purchaser agrees that, during such 40-day restricted period, it will not
cause any advertisement with respect to the Securities (including any
"tombstone" advertisement) to be published in any newspaper or periodical or
posted in any public place and will not issue any circular relating to the
Securities, except such advertisements as permitted by and include the
statements required by Regulation S.
(b) Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Securities by it to any distributor, dealer or person
receiving a selling concession, fee or other remuneration during the 40-day
restricted period referred to in Rule 903(c)(3) under the Securities Act, it
will send to such distributor, dealer or person receiving a selling concession,
fee or other remuneration 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 and sold within the United
States or to, or for the account or benefit of, U.S. persons
(i) as part of your distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the
Offering and the Closing Date, except in either case in
accordance with Regulation S under the Securities Act (or Rule
144A or to Accredited Institutions in transactions that are
exempt from the registration requirements of the Securities
Act), and in connection with any subsequent sale by you of the
Notes covered hereby in reliance on Regulation S during the
period referred to above to any distributor, dealer or person
receiving a selling concession, fee or other remuneration, you
must deliver a notice to substantially the foregoing effect.
Terms used above have the meanings assigned to them in
Regulation S."
(c) Such Initial Purchaser agrees that the Securities offered
and sold in reliance on Regulation S will be represented upon issuance by a
global security that may not be exchanged for definitive securities until the
expiration of the 40-day restricted period referred to in Rule 903(c)(3) of the
Securities Act and only upon certification of beneficial ownership of such
Securities by non-U.S. persons or U.S. persons who purchased such Securities in
transactions that were exempt from the registration requirements of the
Securities Act.]
ANNEX-1