EXHIBIT 1.1
ADVANCED ACCESSORY SYSTEMS, LLC
AAS CAPITAL CORPORATION
$ 150,000,000
10 3/4% SENIOR NOTES DUE 2011
PURCHASE AGREEMENT
May 20, 2003
DEUTSCHE BANK SECURITIES INC.
CREDIT SUISSE FIRST BOSTON LLC
c/o Deutsche Bank Securities Inc.
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Advanced Accessory Systems, LLC, a Delaware limited liability company
(the "COMPANY"), AAS Capital Corporation, a Delaware corporation ("AASC," and
together with the Company, the "ISSUERS"), and each of CHAAS Acquisitions, LLC,
the direct holding company of the Company (the "PARENT"), and the other
subsidiaries of Parent listed on the signature pages hereof (other than the
Company and AASC, each a "SUBSIDIARY GUARANTOR" and, together with the Parent,
the "GUARANTORS") hereby confirm their agreement with you (the "INITIAL
PURCHASERS"), as set forth below.
1. THE SECURITIES. Subject to the terms and conditions herein
contained, the Issuers propose to issue and sell to the Initial Purchasers
$150,000,000 aggregate principal amount of their 10 3/4% Senior Notes due 2011
(the "NOTES"). The Notes will be unconditionally guaranteed (collectively the
"GUARANTEES") on a senior basis by each of the Guarantors. The Notes and the
Guarantees are collectively referred to herein as the "Securities." The
Securities are to be issued under an indenture (the "INDENTURE") to be dated as
of May 23, 2003 by and among the Issuers, the Guarantors and BNY Trust Midwest
Company, as Trustee (the "TRUSTEE").
The Securities will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the
"ACT"), in reliance on exemptions therefrom.
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In connection with the sale of the Securities, the Issuers have
prepared a preliminary offering memorandum dated May 8, 2003 (the "PRELIMINARY
MEMORANDUM") and a final offering memorandum dated May 20, 2003 (the "FINAL
MEMORANDUM"; the Preliminary Memorandum and the Final Memorandum each herein
being referred to as a "MEMORANDUM") setting forth or including a description of
the terms of the Notes, the terms of the offering of the Securities, a
description of the Parent and its subsidiaries (including the Issuers) and any
material developments relating to the Parent and its subsidiaries (including the
Issuers) occurring after the date of the most recent historical financial
statements included therein.
The Initial Purchasers and their direct and indirect transferees of
the Securities will be entitled to the benefits of the Registration Rights
Agreement, substantially in the form attached hereto as EXHIBIT A (the
"REGISTRATION RIGHTS AGREEMENT"), pursuant to which the Issuers and the
Guarantors have agreed, among other things, to file a registration statement
(the "REGISTRATION STATEMENT") with the Securities and Exchange Commission (the
"COMMISSION") registering the Notes or the Exchange Notes (as defined in the
Registration Rights Agreement) under the Act.
In connection with the offering of the Securities, the Issuers and the
Guarantors will amend and restate (the "AMENDMENT") the credit agreement, dated
as of April 15, 2003, by and among SportRack, LLC, Valley Industries, LLC, Brink
B.V., the other persons as designated as "Credit Parties" on the signature pages
thereof, the financial institutions party thereto as Lenders, including without
limitation, Antares Capital Corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, and General
Electric Capital Corporation (the "CREDIT AGREEMENT").
2. REPRESENTATIONS AND WARRANTIES. The Issuers and each of the
Guarantors, jointly and severally, represent to and warrant to and agree with
each of the Initial Purchasers that:
(a) Neither the Preliminary Memorandum as of the date thereof nor
the Final Memorandum nor any amendment or supplement thereto as of the date
thereof and at all times subsequent thereto up to the Closing Date (as
defined in Section 3 below) contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this Section 2(a) do not apply to statements or
omissions made in reliance upon and in conformity with information relating
to any of the Initial Purchasers furnished to the Issuers in writing by the
Initial Purchasers expressly for use in the Preliminary Memorandum, the
Final Memorandum or any amendment or supplement thereto.
(b) As of the Closing Date the Parent will have the issued and
outstanding capitalization set forth in the Final Memorandum; all of the
subsidiaries of the Parent are listed in SCHEDULE 2 attached hereto (each,
a "SUBSIDIARY" and collectively, the
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"SUBSIDIARIES"); all of the outstanding shares of capital stock of the
Subsidiaries that are corporations have been, and as of the Closing Date
will be, duly authorized and validly issued, are fully paid and
nonassessable and were not issued in violation of any preemptive or similar
rights; all of the outstanding equity interests of the Parent and each
Subsidiary that is a limited liability company have been, and as of the
Closing Date will be, issued without any obligation to make additional
capital contributions and in accordance with the applicable limited
liability company law, and were not issued in violation of any preemptive
or similar rights; as of the Closing Date, all of the outstanding equity
interests of the Parent and of each of the Subsidiaries will be free and
clear of all liens, encumbrances, equities and claims or restrictions on
transferability (other than those imposed by the Act and the securities or
"Blue Sky" laws of certain jurisdictions and those imposed by the Credit
Agreement) or voting; except as set forth in the Final Memorandum, there
are no (i) options, warrants or other rights to purchase, (ii) agreements
or other obligations to issue or (iii) other rights to convert any
obligation into, or exchange any securities for, shares of capital stock of
or equity interests in the Parent or any of the Subsidiaries outstanding.
Except for the Subsidiaries or as disclosed in the Final Memorandum, the
Parent does not own, directly or indirectly, any shares of capital stock or
any other equity or long-term debt securities or have any equity interest
in any firm, partnership, joint venture or other entity.
(c) Each of the Issuers and the Guarantors is duly incorporated
or formed, as the case may be, validly existing and in good standing under
the laws of its respective jurisdiction of incorporation or formation and
has all requisite corporate or limited liability company power and
authority to own its properties and conduct its business as now conducted
and as described in the Final Memorandum; each of the Parent and the
Subsidiaries is duly qualified to do business as a foreign corporation or
partnership or limited liability company in good standing in all other
jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not, individually or in the aggregate,
have a material adverse effect on the business, condition (financial or
otherwise), prospects or results of operations of the Parent and the
Subsidiaries, taken as a whole (any such event, a "MATERIAL ADVERSE
EFFECT").
(d) The Issuers have all requisite corporate or limited liability
company power and authority to execute, deliver and perform each of its
obligations under the Notes, the Exchange Notes and the Private Exchange
Notes (as defined in the Registration Rights Agreement). The Notes, when
issued, will be in the form contemplated by the Indenture. The Notes, the
Exchange Notes and the Private Exchange Notes have each been duly and
validly authorized by the Issuers and, when executed by the Issuers and
authenticated by the Trustee in accordance with the provisions of the
Indenture and, in the case of the Notes, when delivered to and paid for by
the Initial Purchasers in accordance with the terms of this Agreement, will
constitute valid and le-
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gally binding obligations of the Issuers, entitled to the benefits of the
Indenture, and enforceable against the Issuers in accordance with their
terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws now or hereafter in effect relating to creditors'
rights generally, and (ii) general principles of equity and the discretion
of the court before which any proceeding therefor may be brought.
(e) Each of the Guarantors has all requisite corporate or limited
liability company power and authority to execute, deliver and perform each
of its obligations under the Guarantees and the guarantees of the Exchange
Notes and the Private Exchange Notes. The Guarantees, when issued, will be
in the form contemplated by the Indenture. The Guarantees and the
guarantees of the Exchange Notes and the Private Exchange Notes have been
duly and validly authorized by each of the Guarantors and, when executed by
each of the Guarantors (and when the Notes, the Exchange Notes or the
Private Exchange Notes, as the case may be, are authenticated by the
Trustee in accordance with the provisions of the Indenture), will have been
duly executed, issued and delivered and will constitute valid and legally
binding obligations of the Guarantors, entitled to the benefits of the
Indenture and enforceable against the Guarantors in accordance with their
terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws now or hereafter in effect relating to creditors'
rights generally, and (ii) general principles of equity and the discretion
of the court before which any proceeding therefor may be brought.
(f) Each of the Issuers and the Guarantors has all requisite
corporate or limited liability company power and authority to execute,
deliver and perform its obligations under the Indenture. The Indenture
meets the requirements for qualification under the Trust Indenture Act of
1939, as amended (the "TIA"). The Indenture has been duly and validly
authorized by the Issuers and each of the Guarantors and, when executed and
delivered by the Issuers and the Guarantors (assuming the due
authorization, execution and delivery by the Trustee), will constitute a
valid and legally binding agreement of the Issuers and each of the
Guarantors, enforceable against the Issuers and the Guarantors in
accordance with its terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of
equity and the discretion of the court before which any proceeding therefor
may be brought.
(g) Each of the Issuers and the Guarantors has all requisite
corporate or limited liability company power and authority to execute,
deliver and perform its obligations under the Registration Rights
Agreement. The Registration Rights Agreement has been duly and validly
authorized by the Issuers and each of the Guarantors and,
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when executed and delivered by the Issuers and each of the Guarantors
(assuming the due authorization, execution and delivery by the Initial
Purchasers), will constitute a valid and legally binding agreement of the
Issuers and each of the Guarantors enforceable against the Issuers and each
of the Guarantors in accordance with its terms, except that (A) the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally, and (ii)
general principles of equity and the discretion of the court before which
any proceeding therefor may be brought and (B) any rights to indemnity or
contribution thereunder may be limited by federal and state securities laws
and public policy considerations.
(h) Each of the Issuers and the Guarantors has all requisite
corporate or limited liability company power and authority to execute,
deliver and perform its obligations under this Agreement and to consummate
the transactions contemplated hereby. This Agreement and the consummation
by the Issuers and each of the Guarantors of the transactions contemplated
hereby have been duly and validly authorized by the Issuers and each of the
Guarantors. This Agreement has been duly executed and delivered by the
Issuers and each of the Guarantors.
(i) Assuming the (A) accuracy of the representations and
warranties of the Initial Purchasers and compliance by the Initial
Purchasers with the covenants set forth in Section 8 hereof and (B)
execution and delivery of the Amendment by the parties thereto, no consent,
approval, authorization or order of any court or governmental agency or
body, or third party is required for the issuance and sale by the Issuers
of the Securities to the Initial Purchasers or the consummation by the
Issuers and the Guarantors of the other transactions contemplated hereby,
except such as have been obtained and such as may be required under state
securities or "Blue Sky" laws in connection with the purchase and resale of
the Securities by the Initial Purchasers. Assuming execution and delivery
of the Amendment by the parties thereto, none of the Parent or the
Subsidiaries is (i) in violation of its certificate of incorporation or
bylaws (or similar organizational documents), (ii) in breach or violation
of any statute, judgment, decree, order, rule or regulation applicable to
any of them or any of their respective properties or assets, except for any
such breach or violation that would not, individually or in the aggregate,
have a Material Adverse Effect, or (iii) in breach of or default under (nor
has any event occurred that, with notice or passage of time or both, would
constitute a default under) or in violation of any of the terms or
provisions of any indenture, mortgage, deed of trust, loan agreement, note,
lease, license, franchise agreement, permit, certificate, contract or other
agreement or instrument to which any of them is a party or to which any of
them or their respective properties or assets is subject (collectively,
"CONTRACTS"), except for any such breach, default, violation or event that
would not, individually or in the aggregate, have a Material Adverse
Effect.
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(j) Assuming execution and delivery of the Amendment by the
parties thereto, the execution, delivery and performance by the Issuers and
the Guarantors of this Agreement, the Indenture and the Registration Rights
Agreement and the consummation by the Issuers and the Guarantors of the
transactions contemplated hereby and thereby (including, without
limitation, the issuance and sale of the Securities to the Initial
Purchasers) will not conflict with or constitute or result in a breach of
or a default under (or an event that with notice or passage of time or both
would constitute a default under) or violation of any of (i) the terms or
provisions of any Contract, except for any such conflict, breach,
violation, default or event that would not, individually or in the
aggregate, have a Material Adverse Effect, (ii) the certificate of
incorporation or bylaws (or similar organizational document) of the Parent
or any of the Subsidiaries or (iii) (assuming compliance with all
applicable state securities or "Blue Sky" laws and assuming the accuracy of
the representations and warranties of the Initial Purchasers in Section 8
hereof) any statute, judgment, decree, order, rule or regulation applicable
to the Parent or any of the Subsidiaries or any of their respective
properties or assets, except for any such conflict, breach or violation
that would not, individually or in the aggregate, have a Material Adverse
Effect.
(k) The audited consolidated financial statements of the Parent
and the Subsidiaries included in the Final Memorandum present fairly in all
material respects the financial position, results of operations and cash
flows of the Parent and the Subsidiaries at the dates and for the periods
to which they relate and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis, except as
otherwise stated therein. The summary and selected financial and
statistical data in the Final Memorandum present fairly in all material
respects the information shown therein and have been prepared and compiled
on a basis consistent with the audited financial statements included
therein, except as otherwise stated therein. PricewaterhouseCoopers LLP
(the "INDEPENDENT ACCOUNTANT") is an independent public accounting firm
within the meaning of the Act and the rules and regulations promulgated
thereunder.
(l) The pro forma financial statements (including the notes
thereto) and the other pro forma financial information included in the
Final Memorandum (i) comply as to form in all material respects with the
applicable requirements of Regulation S-X promulgated under the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), (ii) have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and (iii) have been properly
prepared on the bases described therein; the assumptions used in the
preparation of the pro forma financial data and other pro forma financial
information included in the Final Memorandum are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
or circumstances referred to therein.
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(m) Except as disclosed in the Final Memorandum, there is not
pending or, to the knowledge of the Parent or any of the Subsidiaries,
threatened any action, suit, proceeding, inquiry or investigation to which
the Parent or any of the Subsidiaries is a party, or to which the property
or assets of the Parent or any of the Subsidiaries are subject, before or
brought by any court, arbitrator or governmental agency or body that, if
determined adversely to the Parent or any of the Subsidiaries, would
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect or that seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of the
Securities to be sold hereunder or the consummation of the other
transactions described in the Final Memorandum.
(n) Each of the Parent and the Subsidiaries possesses all
licenses, permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, presently
required or necessary to own or lease, as the case may be, and to operate
its respective properties and to carry on its respective businesses as now
or proposed to be conducted as set forth in the Final Memorandum
("PERMITS"), except where the failure to obtain such Permits would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; each of the Parent and the Subsidiaries has fulfilled and
performed all of its obligations with respect to such Permits and no event
has occurred that allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other impairment of the
rights of the holder of any such Permit, except where any nonfulfillment or
nonperformance would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; and none of the Parent or the
Subsidiaries has received any notice of any proceeding relating to
revocation or modification of any such Permit, except, in each case, (i) as
described in the Final Memorandum or (ii) where such revocation or
modification would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(o) Since the date of the most recent financial statements
appearing in the Final Memorandum, except as described therein, (i) none of
the Parent or the Subsidiaries has incurred any liabilities or obligations,
direct or contingent, or entered into or agreed to enter into any
transactions or contracts (written or oral) not in the ordinary course of
business, which liabilities, obligations, transactions or contracts would,
individually or in the aggregate, be material to the business, condition
(financial or otherwise), prospects or results of operations of the Parent
and its Subsidiaries, taken as a whole, (ii) none of the Parent or the
Subsidiaries has purchased any of its outstanding capital stock or other
equity interests, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock or other equity interests
(other than with respect to any of such Subsidiaries, the purchase of, or
dividend or distribution
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on, capital stock or equity interests owned by the Parent), (iii) there has
been no material change in the capital stock or long-term indebtedness of
the Parent or the Subsidiaries taken as a whole and (iv) there has been no
event, development or occurrence that, individually or in the aggregate,
has or would be reasonably likely to have a Material Adverse Effect.
(p) Each of the Parent and the Subsidiaries has filed all
necessary federal, state and foreign income and franchise tax returns,
except where the failure to so file such returns would not, individually or
in the aggregate, have a Material Adverse Effect, and has paid all taxes
shown as due thereon; and other than tax deficiencies that the Parent or
any Subsidiary is contesting in good faith and for which the Parent or such
Subsidiary has provided adequate reserves, there is no tax deficiency that
has been asserted against the Parent or any of the Subsidiaries that would
have, individually or in the aggregate, a Material Adverse Effect.
(q) The statistical and market-related data included in the Final
Memorandum are based on or derived from sources that the Parent and the
Subsidiaries believe to be reliable and accurate.
(r) None of the Parent, the Subsidiaries or any agent acting on
their behalf has taken or will take any action that might cause this
Agreement or the sale of the Securities to violate Regulation T, U or X of
the Board of Governors of the Federal Reserve System, in each case as in
effect, or as the same may hereafter be in effect, on the Closing Date.
(s) Each of the Parent and the Subsidiaries has good and
marketable title to all real property and good title to all personal
property described in the Final Memorandum as being owned by it and good
and marketable title to a leasehold estate in the real and personal
property described in the Final Memorandum as being leased by it free and
clear of all liens, charges, encumbrances or restrictions, except as
described in the Final Memorandum or to the extent the failure to have such
title or the existence of such liens, charges, encumbrances or restrictions
would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect. All leases, contracts and agreements to which
the Parent or any of the Subsidiaries is a party or by which any of them is
bound are valid and enforceable against the Parent or such Subsidiary, and
are valid and enforceable against the other party or parties thereto and
are in full force and effect with only such exceptions as would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The Parent and the Subsidiaries own or possess adequate
licenses or other rights to use all patents, trademarks, service marks,
trade names, copyrights and know-how necessary to conduct the businesses
now or proposed to be operated by them as described in the Final
Memorandum, and none of the Parent or the Subsidiaries has received any
notice of infringement of or conflict with (or knows of any such
infringement except where the
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failure to so own or possess any of the foregoing would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect) asserted rights of others with respect to any patents, trademarks,
service marks, trade names, copyrights or know-how that, if such assertion
of infringement or conflict were sustained, would reasonably be expected to
have a Material Adverse Effect.
(t) There are no legal or governmental proceedings involving or
affecting the Parent or any Subsidiary or any of their respective
properties or assets that would be required to be described in a prospectus
pursuant to the Act that are not described in the Final Memorandum, nor are
there any material contracts or other documents that would be required to
be described in a prospectus pursuant to the Act that are not described in
the Final Memorandum.
(u) Except as set forth in the Final Memorandum or except as
would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect (A) each of the Parent and the Subsidiaries is in
compliance with and not subject to liability under applicable Environmental
Laws (as defined below), (B) each of the Parent and the Subsidiaries has
made all filings and provided all notices required under any applicable
Environmental Law, and has and is in compliance with all Permits required
under any applicable Environmental Laws and each of them is in full force
and effect, (C) there is no civil, criminal or administrative action, suit,
proceeding or hearing or written notice of violation, investigation,
proceeding, notice or demand letter or request for information pending or,
to the knowledge of the Parent or any of the Subsidiaries, threatened
against the Parent or any of the Subsidiaries under any Environmental Law,
(D) no lien, charge, encumbrance or restriction has been recorded under any
Environmental Law with respect to any assets, facility or property owned,
operated, leased or controlled by the Parent or any of the Subsidiaries,
(E) none of the Parent or the Subsidiaries has received written notice that
it has been identified as a potentially responsible party under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), or any comparable state law and (F) no
property or facility of the Parent or any of the Subsidiaries is (i) listed
or proposed for listing on the National Priorities List under CERCLA or
(ii) listed in the Comprehensive Environmental Response, Compensation and
Liability Information System List promulgated pursuant to CERCLA, or on any
comparable list maintained by any state or local governmental authority.
For purposes of this Agreement, "ENVIRONMENTAL LAWS" means the common
law and all applicable federal, state and local laws or regulations, codes,
orders, decrees, judgments or injunctions issued, promulgated, approved or
entered thereunder, relating to pollution or protection of public or
employee health and safety or the environment, including, without
limitation, laws relating to (i) emissions, discharges, releases or
threatened releases of hazardous materials into the environment (including,
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without limitation, ambient air, surface water, ground water, land surface
or subsurface strata), (ii) the manufacture, processing, distribution, use,
generation, treatment, storage, disposal, transport or handling of
hazardous materials, and (iii) underground and aboveground storage tanks
and related piping, and emissions, discharges, releases or threatened
releases therefrom.
(v) There is no strike, labor dispute, slowdown or work stoppage
with the employees of the Parent or any of the Subsidiaries that is pending
or, to the knowledge of the Parent or any of the Subsidiaries, threatened.
(w) Each of the Parent and the Subsidiaries carries insurance in
such amounts and covering such risks as it believes to be consistent with
industry practice to protect the Parent and its Subsidiaries and their
respective businesses.
(x) Except as set forth in the Final Memorandum, none of the
Parent or the Subsidiaries has any liability for any prohibited transaction
or funding deficiency or any complete or partial withdrawal liability with
respect to any pension, profit sharing or other plan that is subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), to
which the Parent or any of the Subsidiaries makes (or within the preceding
six years has made) a contribution and in which any employee of the Parent
or of any Subsidiary is or has ever been a participant. With respect to
such plans, the Parent and each Subsidiary is in compliance with all
applicable provisions of ERISA, except where such noncompliance would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(y) Each of the Parent and the Subsidiaries (i) makes and keeps
accurate books and records and (ii) maintains internal accounting controls
that provide reasonable assurance that (A) transactions are executed in
accordance with management's authorization, (B) transactions are recorded
as necessary to permit preparation of its financial statements and to
maintain accountability for its assets, (C) access to its assets is
permitted only in accordance with management's authorization and (D) the
reported accountability for its assets is compared with existing assets at
reasonable intervals.
(z) None of the Parent or the Subsidiaries is, or immediately
after the sale of the Notes to be sold hereunder and the application of the
proceeds from such sale (as described in the Final Memorandum under the
caption "Use of Proceeds") will be, an "investment company" or "promoter"
or "principal underwriter" for an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended, and the rules
and regulations thereunder.
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(aa) The Notes, the Guarantees, the Indenture and the Registration
Rights Agreement will conform in all material respects to the descriptions
thereof in the Final Memorandum.
(bb) No holder of securities of the Parent or any Subsidiary
(other than a holder of Notes, Exchange Notes or Private Exchange Notes)
will be entitled to have such securities registered under the registration
statements required to be filed by the Parent and the Guarantors pursuant
to the Registration Rights Agreement other than as expressly permitted
thereby.
(cc) Immediately after the consummation of the transactions
contemplated by this Agreement, the fair value and present fair saleable
value of the assets of each of the Parent and the Subsidiaries (on a
consolidated basis) will exceed the sum of its stated liabilities and
identified contingent liabilities; none of the Parent or the Subsidiaries
(each on a consolidated basis) is, nor will any of the Parent or the
Subsidiaries (each on a consolidated basis) be, after giving effect to the
execution, delivery and performance of this Agreement, and the consummation
of the transactions contemplated hereby, (a) left with unreasonably small
capital with which to carry on its business as it is proposed to be
conducted, (b) unable to pay its debts (contingent or otherwise) as they
mature or (c) otherwise insolvent.
(dd) None of the Parent, the Subsidiaries or any of their
respective Affiliates (as defined in Rule 501(b) of Regulation D under the
Act) has directly, or through any agent, (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any
"security" (as defined in the Act) that is or could be integrated with the
sale of the Securities in a manner that would require the registration
under the Act of the Securities or (ii) engaged in any form of general
solicitation or general advertising (as those terms are used in Regulation
D under the Act) in connection with the offering of the Securities or in
any manner involving a public offering within the meaning of Section 4(2)
of the Act. Assuming the accuracy of the representations and warranties of
the Initial Purchasers and compliance by the Initial Purchasers with the
covenants set forth in Section 8 hereof, it is not necessary in connection
with the offer, sale and delivery of the Securities to the Initial
Purchasers in the manner contemplated by this Agreement to register any of
the Securities under the Act or to qualify the Indenture under the TIA.
(ee) No securities of the Parent or any Subsidiary are of the same
class (within the meaning of Rule 144A under the Act) as the Securities and
listed on a national securities exchange registered under Section 6 of the
Exchange Act, or quoted in a U.S. automated inter-dealer quotation system.
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(ff) None of the Parent or the Subsidiaries has taken, nor will
any of them 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 the Securities.
(gg) None of the Parent, the Subsidiaries, any of their respective
Affiliates or any person acting on its or their behalf (other than the
Initial Purchasers) has engaged in any directed selling efforts (as that
term is defined in Regulation S under the Act ("REGULATION S")) with
respect to the Securities; the Parent, the Subsidiaries and their
respective Affiliates and any person acting on its or their behalf (other
than the Initial Purchasers) have complied with the offering restrictions
requirement of Regulation S.
Any certificate signed by any officer of the Parent or any Subsidiary
and delivered to any Initial Purchaser or to counsel for the Initial Purchasers
shall be deemed a joint and several representation and warranty by the Parent
and each of the Subsidiaries to each Initial Purchaser as to the matters covered
thereby.
3. PURCHASE, SALE AND DELIVERY OF THE SECURITIES. On the basis
of the representations, warranties, agreements and covenants herein contained
and subject to the terms and conditions herein set forth, the Issuers, jointly
and severally, agree to issue and sell to the Initial Purchasers, and the
Initial Purchasers, acting severally and not jointly, agree to purchase the
Securities in the respective amounts set forth on SCHEDULE 1 hereto from the
Issuers at 97.00% of their principal amount. One or more certificates in
definitive form for the Securities that the Initial Purchasers have agreed to
purchase hereunder, and in such denomination or denominations and registered in
such name or names as the Initial Purchasers request upon notice to the Issuers
at least 36 hours prior to the Closing Date, shall be delivered by or on behalf
of the Issuers to the Initial Purchasers, against payment by or on behalf of the
Initial Purchasers of the purchase price therefor by wire transfer (same day
funds), to such account or accounts as the Issuers shall specify prior to the
Closing Date, or by such means as the parties hereto shall agree prior to the
Closing Date. Such delivery of and payment for the Securities shall be made at
the offices of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at
9:00 A.M., New York time, on May 23, 2003, or at such other place, time or date
as the Initial Purchasers, on the one hand, and the Issuers, on the other hand,
may agree upon, such time and date of delivery against payment being herein
referred to as the "Closing Date." The Issuers will make such certificate or
certificates for the Securities available for checking and packaging by the
Initial Purchasers at the offices of Deutsche Bank Securities Inc. in New York,
New York, or at such other place as Deutsche Bank Securities Inc. may designate,
at least 24 hours prior to the Closing Date.
4. OFFERING BY THE INITIAL PURCHASERS. The Initial Purchasers
propose to make an offering of the Securities at the price and upon the terms
set forth in the Final Memorandum as soon as practicable after this Agreement is
entered into and as in the judgment of the Initial Purchasers is advisable.
-13-
5. COVENANTS OF THE ISSUERS AND THE GUARANTORS. The Issuers and
each of the Guarantors covenants and agrees with each of the Initial Purchasers
that:
(a) The Issuers will not amend or supplement the Final Memorandum
or any amendment or supplement thereto of which the Initial Purchasers
shall not previously have been advised and furnished a copy for a
reasonable period of time prior to the proposed amendment or supplement and
as to which the Initial Purchasers shall not have given their consent. The
Issuers will promptly, upon the reasonable request of the Initial
Purchasers or counsel for the Initial Purchasers, make any amendments or
supplements to the Preliminary Memorandum or the Final Memorandum that may
be necessary or advisable in connection with the resale of the Securities
by the Initial Purchasers.
(b) The Issuers and the Guarantors will cooperate with the
Initial Purchasers in arranging for the qualification of the Securities for
offering and sale under the securities or "Blue Sky" laws of such
jurisdictions as the Initial Purchasers may designate and will continue
such qualifications in effect for as long as may be necessary to complete
the resale of the Securities; PROVIDED, HOWEVER, that in connection
therewith, neither the Issuers nor any of the Guarantors shall be required
to qualify as a foreign corporation or to execute a general consent to
service of process in any jurisdiction or subject itself to taxation in
excess of $1,000 in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the distribution
by the Initial Purchasers of all of the Securities or the Private Exchange
Notes, any event occurs or information becomes known as a result of which
the Final Memorandum as then amended or supplemented would include any
untrue statement of a material fact, or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if for any other reason it
is necessary at any time to amend or supplement the Final Memorandum to
comply with applicable law, the Issuers will promptly notify the Initial
Purchasers thereof and will prepare, at the expense of the Issuers, an
amendment or supplement to the Final Memorandum that corrects such
statement or omission or effects such compliance.
(d) The Issuers will, without charge, promptly provide to the
Initial Purchasers and to counsel for the Initial Purchasers as many copies
of the Preliminary Memorandum and the Final Memorandum or any amendment or
supplement thereto as the Initial Purchasers may reasonably request.
(e) The Issuers will apply the net proceeds from the sale of the
Securities as set forth under "Use of Proceeds" in the Final Memorandum.
-14-
(f) Until the second anniversary of the Closing Date, the Issuers
will furnish to the Initial Purchasers copies of all reports and other
communications (financial or otherwise) furnished by the Parent or the
Issuers to the Trustee or to the holders of the Securities and, as soon as
available, copies of any reports or financial statements furnished to or
filed by the Parent or the Issuers with the Commission or any national
securities exchange on which any class of securities of the Issuers may be
listed.
(g) Prior to the Closing Date, the Issuers will furnish to the
Initial Purchasers, as soon as they have been prepared, a copy of any
unaudited interim financial statements of the Parent and the Subsidiaries
for any period subsequent to the period covered by the most recent
financial statements appearing in the Final Memorandum.
(h) None of the Parent, the Subsidiaries or any of their
Affiliates will sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any "security" (as defined in the Act) that could
reasonably be expected to be integrated with the sale of the Securities in
a manner which would require the registration under the Act of the
Securities.
(i) The Parent will not, and will not permit any of the
Subsidiaries to, engage in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) in
connection with the offering of the Securities or in any manner involving a
public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the
Issuers will make available at their expense, upon request, to any holder
of such Securities and any prospective purchasers thereof the information
specified in Rule 144A(d)(4) under the Act, unless the Parent or the
Issuers is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Issuers will use its best efforts to (i) permit the
Securities to be designated as PORTAL-eligible securities in accordance
with the rules and regulations adopted by the National Association of
Securities Dealers, Inc. ("NASD") relating to trading in the NASD's Portal
Market (the "PORTAL MARKET") and (ii) permit the Securities to be eligible
for clearance and settlement through The Depository Trust Company.
(l) In connection with Securities offered and sold in an offshore
transaction (as defined in Regulation S) the Issuers will not register any
transfer of such Securities not made in accordance with the provisions of
Regulation S and will not, except in accordance with the provisions of
Regulation S, if applicable, issue any such Securities in the form of
definitive securities.
-15-
6. EXPENSES. The Issuers and each of the Guarantors, jointly and
severally, agree to pay all costs and expenses incident to the performance of
their obligations under this Agreement, whether or not the transactions
contemplated herein are consummated or this Agreement is terminated pursuant to
Section 11 or 12 hereof, including all costs and expenses incident to (i) the
printing, word processing or other production of documents with respect to the
transactions contemplated hereby, including any costs of printing the
Preliminary Memorandum and the Final Memorandum and any amendment or supplement
thereto, and any "Blue Sky" memoranda, (ii) all arrangements relating to the
delivery to the Initial Purchasers of copies of the foregoing documents, (iii)
the fees and disbursements of the counsel, the accountants and any other experts
or advisors retained by the Parent or the Issuers, (iv) preparation (including
printing), issuance and delivery to the Initial Purchasers of the Securities,
(v) the qualification of the Securities under state securities and "Blue Sky"
laws, including filing fees and reasonable fees and disbursements of counsel for
the Initial Purchasers relating thereto, (vi) expenses in connection with the
"roadshow" and any other meetings with prospective investors in the Securities,
(vii) fees and expenses of the Trustee including fees and expenses of counsel,
(viii) all expenses and listing fees incurred in connection with the application
for quotation of the Securities on the Portal Market and (ix) any fees charged
by investment rating agencies for the rating of the Securities; PROVIDED,
HOWEVER, that except as expressly provided in this Section 6, the Initial
Purchasers shall pay their own costs and expenses, including the costs and
expenses of their counsel. If the sale of the Securities provided for herein is
not consummated because any condition to the obligations of the Initial
Purchasers set forth in Section 7 hereof is not satisfied, because this
Agreement is terminated or because of any failure, refusal or inability on the
part of the Issuers or the Guarantors to perform all obligations and satisfy all
conditions on their part to be performed or satisfied hereunder (other than
solely by reason of a default by the Initial Purchasers of their obligations
hereunder after all conditions to be satisfied by the Issuers and the Guarantors
hereunder have been satisfied in accordance herewith), the Issuers and the
Guarantors, jointly and severally, agree to promptly reimburse the Initial
Purchasers upon demand for all reasonable and documented out-of-pocket expenses
(including reasonable fees, disbursements and charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP, counsel for the Initial Purchasers) that shall have been incurred by the
Initial Purchasers in connection with the proposed purchase and sale of the
Securities.
7. CONDITIONS OF THE INITIAL PURCHASERS' OBLIGATIONS. The
obligation of the Initial Purchasers to purchase and pay for the Securities
shall, in their sole discretion, be subject to the satisfaction or waiver of the
following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have
received the opinion, dated as of the Closing Date and addressed to the
Initial Purchasers, of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Issuers,
in form and substance reasonably satisfactory to counsel for the Initial
Purchasers, substantially to the effect that:
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(i) Each of the Issuers and Guarantors is validly existing
and in good standing under the laws of the State of Delaware and has
the requisite corporate or limited liability company power and
authority to own its properties and to conduct its business as
described in the Final Memorandum. Relying solely on good standing
certificates issued by the secretaries of state, each Issuer and
Guarantor is duly qualified to do business as a foreign corporation or
limited liability company, as the case may be, in good standing in the
jurisdictions set forth opposite their respective names on a schedule
annexed to such opinion as of the dates set forth on such schedule.
(ii) Based solely on such counsel's review of the membership
interest transfer ledger of the Parent, the Parent has the issued and
outstanding capitalization set forth in the first paragraph under the
heading "Security Ownership of Certain Beneficial Owners and
Management" in the Final Memorandum; all of the outstanding equity
interests of the Issuers and the Guarantors reflected in the stock or
membership interest transfer ledgers of the Issuers and the Guarantors
have been validly issued, and are fully paid and nonassessable and, to
the knowledge of such counsel, were not issued in violation of any
contractual preemptive or similar rights; except as disclosed in the
Final Memorandum, based solely on such counsel's review of the
membership interest transfer ledger or stock transfer ledger of the
Issuers and the Subsidiary Guarantors, as applicable, all of the
outstanding equity interests of the Issuers and the Subsidiary
Guarantors are owned of record, directly or indirectly, by the Parent,
and, to such counsel's knowledge, other than a pledge of the
outstanding equity interests of the Issuers and the Guarantors to the
lenders under the Amendment to the Credit Agreement, free and clear of
all perfected security interests.
(iii) Except as set forth in the Final Memorandum, to the
knowledge of such counsel (A) no options, warrants or other rights to
purchase from any Issuer or Guarantor shares of capital stock or
membership interests in any such Issuers or Guarantor are outstanding,
(B) no agreements or other obligations to issue, or other rights to
convert any obligation into, or exchange any securities for, capital
stock or membership interests in any Issuer or Guarantor are
outstanding and (C) no holder of securities of any Issuer or Guarantor
(other than a holder of Notes, Exchange Notes or Private Exchange
Notes) is entitled to have such securities registered under a
registration statement filed by the Issuers pursuant to the
Registration Rights Agreement.
(iv) Each of the Issuers and the Guarantors has all requisite
corporate or limited liability company power and authority to execute
and deliver and perform its obligations under the Indenture, the
Notes, the Exchange Notes and
-17-
the Private Exchange Notes; the Indenture complies as to form in all
material respects with the requirements of the TIA; the Indenture has
been duly and validly authorized, executed and delivered by the
Issuers and the Guarantors and (assuming the due authorization,
execution and delivery thereof by the Trustee) constitutes the valid
and legally binding agreement of each of the Issuers and the
Guarantors, enforceable against each of the Issuers and the Guarantors
in accordance with its terms, except that the enforcement thereof may
be subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before which any
proceeding therefor may be brought.
(v) The Notes are in the form contemplated by the Indenture.
The Notes have each been duly and validly authorized, executed and
delivered by the Issuers and, when paid for by the Initial Purchasers
in accordance with the terms of this Agreement (assuming the due
authorization, execution and delivery of the Indenture by the Trustee
and due authentication and delivery of the Notes by the Trustee in
accordance with the Indenture), will constitute the valid and legally
binding obligations of the Issuers, entitled to the benefits of the
Indenture, and enforceable against the Issuers in accordance with
their terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor
may be brought.
(vi) The Exchange Notes and the Private Exchange Notes have
been duly and validly authorized by the Issuers, and, when duly
executed and delivered by the Issuers in accordance with the terms of
the Registration Rights Agreement and the Indenture (assuming the due
authorization, execution and delivery of the Indenture by the Trustee
and due authentication and delivery of the Exchange Notes and the
Private Exchange Notes by the Trustee in accordance with the
Indenture), will constitute the valid and legally binding obligations
of the Issuers, entitled to the benefits of the Indenture, and
enforceable against the Issuers in accordance with their terms, except
that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before
which any proceeding therefor may be brought.
(vii) The Guarantees are in the form contemplated by the
Indenture. The Guarantees have been duly and validly authorized
executed and delivered
-18-
by each of the Guarantors and, when the Notes are authenticated by the
Trustee in accordance with the provisions of the Indenture, (a) the
Guarantees and (b) the guarantees of the Exchange Notes and the
Private Exchange Notes will have been duly and validly authorized by
each of the Guarantors and when duly executed and delivered by the
Guarantors (in accordance with the terms of the Indenture, and when
the Exchange Notes or the Private Exchange Notes, as the case may be,
are authenticated by the Trustee in accordance with the provisions of
the Indenture), in each case (a) and (b), will have been duly
executed, issued and delivered and will constitute valid and legally
binding obligations of the Guarantors, entitled to the benefits of the
Indenture and enforceable against the Guarantors in accordance with
their terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, fraudulent conveyance, reorganization,
fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, and (ii)
general principles of equity and the discretion of the court before
which any proceeding therefor may be brought.
(viii) Each of the Issuers and the Guarantors has all requisite
corporate or limited liability company power and authority to execute,
deliver and perform its obligations under the Registration Rights
Agreement; the Registration Rights Agreement has been duly and validly
authorized, executed and delivered by each of the Issuers and the
Guarantors and (assuming due authorization, execution and delivery
thereof by the other parties thereto) constitutes the valid and
legally binding agreement of each of the Issuers and the Guarantors,
enforceable against the Issuers and the Guarantors in accordance with
its terms, except that (A) the enforcement thereof may be subject to
(i) bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor
may be brought and (B) any rights to indemnity or contribution
thereunder may be limited by federal and state securities laws and
public policy considerations.
(ix) Each of the Issuers and the Guarantors has all requisite
corporate and/or other limited liability company power and authority
to execute, deliver and perform their obligations under this Agreement
and to consummate the transactions contemplated hereby; this Agreement
and the consummation by the Issuers and the Guarantors of the
transactions contemplated hereby have been duly and validly authorized
by the Issuers and the Guarantors. This Agreement has been duly
executed and delivered by the Issuers and the Guarantors.
-19-
(x) The statements under the captions "Description of Certain
Indebtedness," "Description of the Notes," and "Exchange Offer;
Registration Rights" in the Final Memorandum insofar as such
statements constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly present in all material
respects such legal matters, documents and proceedings, and the
statements made in the Final Memorandum under the heading "Certain
United States Federal Income Tax Considerations," insofar as such
statements summarize certain federal income tax laws of the United
States, constitute a fair summary of the principal U.S. federal income
tax consequences of an investment in the Notes.
(xi) To the knowledge of such counsel, except as described in
the Final Memorandum, no legal or governmental proceedings are pending
or threatened that seek to restrain, enjoin, prevent the consummation
of or otherwise challenge the issuance or sale of the Notes hereunder
or the consummation of the other transactions described in the Final
Memorandum under the caption "Use of Proceeds."
(xii) The execution, delivery and performance by each Issuer
and Guarantor of this Agreement, the Indenture, the Registration
Rights Agreement and the consummation of the transactions contemplated
hereby and thereby (including, without limitation, the issuance and
sale of the Notes to the Initial Purchasers) will not conflict with or
constitute or result in a breach or a default under (or an event that
with notice or passage of time or both would constitute a default
under) or violation of any of (i) after giving effect to the
effectiveness of the Amendment annexed to such opinion and the
application of the proceeds from the issuance and sale of the Notes as
described in the Final Memorandum, the terms or provisions of any
Contract listed on a schedule reasonably acceptable to the Initial
Purchasers, except for any such conflict, breach, violation, default
or event that would not, individually or in the aggregate, have a
Material Adverse Effect, (ii) the certificate of incorporation or
bylaws, certificate of formation or operating agreement, as
applicable, of any Issuer or Guarantor, or (iii) (assuming compliance
with all applicable state securities or "Blue Sky" laws and assuming
the accuracy of the representations and warranties of the Initial
Purchasers in Section 8 hereof) any statute, judgment, decree, order,
rule or regulation known to and believed by such counsel to be
normally applicable to transactions of the type contemplated by this
Agreement, the Indenture and the Registration Rights Agreement, except
for any such conflict, breach, default or violation that would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
-20-
(xiii) No consent, approval, authorization or order of any
governmental authority is required for the issuance and sale by the
Issuers of the Notes to the Initial Purchasers or the consummation by
the Issuers of the other transactions contemplated hereby, except such
as may be required under Blue Sky or state securities laws, as to
which such counsel need express no opinion, and those which have
previously been obtained.
(xiv) After giving effect to the sale of the Securities to
be sold hereunder and the application of the proceeds from such sale
(as described in the Final Memorandum under the caption "Use of
Proceeds"), none of the Parent, the Issuers or the Subsidiary
Guarantors is an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(xv) No registration under the Act of the Securities is
required in connection with the sale of the Notes to the Initial
Purchasers as contemplated by this Agreement and the Final Memorandum
or in connection with the initial resale of the Notes by the Initial
Purchasers in accordance with Section 8 of this Agreement, and prior
to the commencement of the Exchange Offer (as defined in the
Registration Rights Agreement) or the effectiveness of the Shelf
Registration Statement (as defined in the Registration Rights
Agreement), the Indenture is not required to be qualified under the
TIA, in each case assuming (i) (A) that the purchasers who buy such
Notes in the initial resale thereof are qualified institutional buyers
("QIBs") as defined in Rule 144A promulgated under the Act or (B) that
the offer or sale of the Notes is made in an offshore transaction as
defined in Regulation S, (ii) the accuracy of the Initial Purchasers'
representations in Section 8 and those of the Issuers and the
Guarantors contained in this Agreement regarding the absence of a
general solicitation in connection with the sale of such Notes to the
Initial Purchasers and the initial resale thereof and (iii) the due
performance by the Initial Purchasers of the agreements set forth in
Section 8 hereof.
(xvi) Neither the consummation of the transactions contemplated
by this Agreement nor the sale, issuance, execution or delivery of the
Securities will violate Regulation T, U or X of the Board of Governors
of the Federal Reserve System.
The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP may be subject to customary
exceptions, assumptions and qualifications reasonably acceptable to the
Initial Purchasers. At the time the foregoing opinion is delivered, ▇▇▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇ LLP shall additionally state that it has participated in
conferences with officers and other representatives of the Parent and the
Issuers, representatives of the independent public accountants for the
Parent and the Issuers, representatives of the Initial Purchasers and
counsel for the Initial Purchasers, at which conferences the contents of
the Final Memorandum
-21-
and related matters were discussed, and, although it has not independently
verified and is not passing upon and assumes no responsibility for the
accuracy, completeness or fairness of the statements contained in the Final
Memorandum (except to the extent specified in subsection 7(a)(x)), no facts
have come to its attention which lead it to believe that the Final
Memorandum, on the date thereof or at the Closing Date, contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements contained therein,
in light of the circumstances under which they were made, not misleading
(it being understood that such firm need express no opinion with respect to
the financial statements and related notes thereto and the other financial
and accounting data derived from the Company's books and records included
in the Final Memorandum). The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP described
in this Section shall be rendered to the Initial Purchasers at the request
of the Issuers and shall so state therein.
References to the Final Memorandum in this subsection (a) shall
include any amendment or supplement thereto prepared in accordance with the
provisions of this Agreement at the Closing Date.
(b) On the Closing Date, the Initial Purchasers shall have
received the opinion, in form and substance satisfactory to the Initial
Purchasers, dated as of the Closing Date and addressed to the Initial
Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial
Purchasers, with respect to certain legal matters relating to this
Agreement and such other related matters as the Initial Purchasers may
reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
shall have received and may rely upon such certificates and other documents
and information as it may reasonably request to pass upon such matters.
(c) The Initial Purchasers shall have received from the
Independent Accountant a comfort letter or letters dated the date hereof
and the Closing Date, in form and substance reasonably satisfactory to
counsel for the Initial Purchasers.
(d) The representations and warranties of the Issuers and the
Guarantors contained in this Agreement shall be true and correct on and as
of the date hereof and on and as of the Closing Date as if made on and as
of the Closing Date; the statements of the Issuers' and the Guarantors'
officers made pursuant to any certificate delivered in accordance with the
provisions hereof shall be true and correct on and as of the date made and
on and as of the Closing Date; the Issuers and the Guarantors shall have
performed all covenants and agreements and satisfied all conditions on
their part to be performed or satisfied hereunder at or prior to the
Closing Date; and, except as described in the Final Memorandum (exclusive
of any amendment or supplement thereto after the date hereof), subsequent
to the date of the most recent financial statements in such Final
Memorandum, there shall have been no event or development, and no
in-
-22-
formation shall have become known, that, individually or in the aggregate,
has or would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Securities hereunder shall not be enjoined
(temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial
statements in the Final Memorandum (exclusive of any amendment or
supplement thereto after the date hereof), none of the Parent or any of the
Subsidiaries shall have sustained any loss or interference with respect to
its business or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any strike, labor
dispute, slowdown or work stoppage or from any legal or governmental
proceeding, order or decree, which loss or interference, individually or in
the aggregate, has or would be reasonably likely to have a Material Adverse
Effect.
(g) The Initial Purchasers shall have received a certificate of
the Issuers and the Guarantors, dated the Closing Date, signed on behalf of
the Company and the Guarantors by its Chairman of the Board, Chief
Executive Officer, President or any Senior Vice President and the Chief
Financial Officer (and with respect to AASC, the Chief Executive Officer
and the Assistant Treasurer), to the effect that:
(i) The representations and warranties of the Issuers
and the Guarantors contained in this Agreement are true and correct on
and as of the date hereof and on and as of the Closing Date, and the
Issuers and the Guarantors have performed all covenants and agreements
and satisfied all conditions on their part to be performed or
satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since
the date of the most recent financial statements in the Final
Memorandum (exclusive of any amendment or supplement thereto after the
date hereof), no event or development has occurred, and no information
has become known, that, individually or in the aggregate, has or would
be reasonably likely to have a Material Adverse Effect; and
(iii) The sale of the Securities hereunder has not been
enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have
received the Registration Rights Agreement executed by the Issuers and the
Guarantors and such agreement shall be in full force and effect at all
times from and after the Closing Date subject to the terms and conditions
contained therein.
-23-
(i) On or prior to the Closing Date, the Issuers and the
Guarantors shall have executed and delivered the Amendment, in form and
substance satisfactory to counsel for the Initial Purchasers.
On or before the Closing Date, the Initial Purchasers and counsel for
the Initial Purchasers shall have received such further documents, opinions,
certificates, letters and schedules or instruments relating to the business,
corporate, legal and financial affairs of the Parent and the Subsidiaries as
they shall have heretofore reasonably requested from the Parent.
All such documents, opinions, certificates, letters, schedules or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are reasonably satisfactory in all material respects to the
Initial Purchasers and counsel for the Initial Purchasers. The Issuers shall
furnish to the Initial Purchasers such conformed copies of such documents,
opinions, certificates, letters, schedules and instruments in such quantities as
the Initial Purchasers shall reasonably request.
8. OFFERING OF SECURITIES; RESTRICTIONS ON TRANSFER. (a) Each
of the Initial Purchasers agrees with the Issuers and the Guarantors (as to
itself only) that (i) it has not and will not solicit offers for, or offer or
sell, the Notes by any form of general solicitation or general advertising (as
those terms are used in Regulation D under the Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Act; and (ii) it has
and will solicit offers for the Securities only from, and will offer the
Securities only to, (A) in the case of offers inside the United States, persons
whom the Initial Purchasers reasonably believe to be QIBs or, if any such person
is buying for one or more institutional accounts for which such person is acting
as fiduciary or agent, only when such person has represented to the Initial
Purchasers that each such account is a QIB to whom notice has been given that
such sale or delivery is being made in reliance on Rule 144A and, in each case,
in transactions under Rule 144A and (B) in the case of offers outside the United
States, to persons other than U.S. persons ("NON-U.S. PURCHASERS," which term
shall include dealers or other professional fiduciaries in the United States
acting on a discretionary basis for non-U.S. beneficial owners (other than an
estate or trust)); PROVIDED, HOWEVER, that, in the case of this clause (B), in
purchasing such Securities such persons are deemed to have represented and
agreed as provided under the caption "Notice to Investors" contained in the
Final Memorandum (or, if the Final Memorandum is not in existence, in the most
recent Memorandum).
(b) Each of the Initial Purchasers represents and warrants (as to
itself only) with respect to offers and sales outside the United States that (i)
it has and will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Securities or has
in its possession or distributes any Memorandum or any such other material, in
all cases at its own expense; (ii) the Securities have not been and will not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except in accordance with Regulation S or pursuant to an
exemption from the registration re-
-24-
quirements of the Act; and (iii) it has offered the Securities and will offer
and sell the Securities (A) as part of its distribution at any time and (B)
otherwise until 40 days after the later of the commencement of the offering and
the Closing Date, only in accordance with Rule 903 of Regulation S and,
accordingly, neither it nor any persons acting on its behalf have engaged or
will engage in any directed selling efforts (within the meaning of Regulation S)
with respect to the Notes, and any such persons have complied and will comply
with the offering restrictions requirement of Regulation S.
Terms used in this Section 8 and not defined in this Agreement have
the meanings given to them in Regulation S.
9. INDEMNIFICATION AND CONTRIBUTION. (a) The Issuers and each of
the Guarantors agree, jointly and severally, to indemnify and hold harmless each
Initial Purchaser and each person, if any, who controls any Initial Purchaser
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
against any losses, claims, damages or liabilities to which any Initial
Purchaser or such controlling person may become subject under the Act, the
Exchange Act or otherwise, insofar as any such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the
Issuers or the Guarantors in Section 2 hereof;
(ii) any untrue statement or alleged untrue statement of any
material fact contained in any Memorandum or any amendment or supplement
thereto; or
(iii) the omission or alleged omission to state, in any Memorandum
or any amendment or supplement thereto, a material fact required to be
stated therein or necessary to make the statements therein not misleading,
and will reimburse, as incurred, the Initial Purchasers and each such
controlling person for any reasonable legal or other expenses incurred by the
Initial Purchasers or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Issuers and the Guarantors will not be liable in any such case to the extent
that any such loss, claim, damage, or liability arises out of or is based upon
any untrue statement or alleged untrue statement or omission or alleged omission
made in any Memorandum or any amendment or supplement thereto in reliance upon
and in conformity with written information concerning the Initial Purchasers
furnished to the Issuers by the Initial Purchasers through Deutsche Bank
Securities Inc. specifically for use therein. The indemnity provided for in this
Section 9 will be in addition to any liability that the Issuers and the
Guarantors may otherwise have to the indemnified parties. The Issuers and the
Guarantors shall not be liable under this Section 9 for any settlement of any
claim or action effected without their prior written consent, which shall not be
unreasonably withheld. In addition the Issuers and the Guarantors
-25-
will not be liable to any Initial Purchaser or any person controlling such
Initial Purchaser with respect to any such untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Memorandum
that is corrected in the Final Memorandum (or any amendment or supplement
thereto) if the person asserting any such loss, claim, damage or liability
purchased Notes from such Initial Purchaser but was not sent or given a copy of
the Final Memorandum (as amended or supplemented) in any case where such
delivery of the Final Memorandum (as amended or supplemented) was required by
the Act, unless such failure to deliver the Final Memorandum (as amended or
supplemented) was a result of noncompliance by the Issuers and the Guarantors
with Section 5 hereof.
(b) Each Initial Purchaser, severally and not jointly, agrees to
indemnify and hold harmless the Issuers and the Guarantors, their directors and
managers, as applicable, their officers and each person, if any, who controls
the Issuers or any Guarantor within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which the Issuers, the Guarantors or any such director, manager,
officer or controlling person may become subject under the Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any Memorandum or any
amendment or supplement thereto, or (ii) the omission or the alleged omission to
state therein a material fact required to be stated in any Memorandum or any
amendment or supplement thereto, 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 reliance upon and in conformity with written information concerning such
Initial Purchaser furnished to the Issuers by such Initial Purchaser through
Deutsche Bank Securities Inc. specifically for use therein; and subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses incurred by the Issuers, the Guarantors or
any such director, manager, officer or controlling person in connection with
investigating or defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action in respect
thereof. The indemnity provided for in this Section 9 will be in addition to any
liability that the Initial Purchasers may otherwise have to the indemnified
parties. The Initial Purchasers shall not be liable under this Section 9 for any
settlement of any claim or action effected without their consent, which shall
not be unreasonably withheld. The Issuers and the Guarantors shall not, without
the prior written consent of the Initial Purchasers, effect any settlement or
compromise of any pending or threatened proceeding in respect of which any
Initial Purchaser is or could have been a party, or indemnity could have been
sought hereunder by any Initial Purchaser, unless such settlement (A) includes
an unconditional written release of the Initial Purchasers, in form and
substance reasonably satisfactory to the Initial Purchasers, from all liability
on claims that are the subject matter of such proceeding and (B) does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of any Initial Purchaser.
-26-
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 9, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9, notify the indemnifying party of the commencement
thereof in writing; but the omission to so notify the indemnifying party (i)
will not relieve it from any liability under paragraph (a) or (b) above unless
and to the extent such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraphs (a) and (b)
above. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; PROVIDED, HOWEVER, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 9 for any legal or
other expenses, other than reasonable costs of investigation, 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 immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the reasonable expenses of more than one separate
counsel (in addition to one local counsel in any jurisdiction) in any one action
or separate but substantially similar actions in the same jurisdiction arising
out of the same general allegations or circumstances, designated by the Initial
Purchasers in the case of paragraph (a) of this Section 9 or the Issuers or the
Guarantors in the case of paragraph (b) of this Section 9, representing the
indemnified parties under such paragraph (a) or paragraph (b), as the case may
be, who are parties to such action or actions) or (ii) the indemnifying party
has authorized in writing the employment of counsel for the indemnified party at
the expense of the indemnifying party. All fees and expenses reimbursed pursuant
to this paragraph (c) shall be reimbursed as they are incurred. After such
notice from the indemnifying party to such in-
-27-
demnified party, the indemnifying party will not be liable for the costs and
expenses of any settlement of such action effected by such indemnified party
without the prior written consent of the indemnifying party (which consent shall
not be unreasonably withheld), unless such indemnified party waived in writing
its rights under this Section 9, in which case the indemnified party may effect
such a settlement without such consent.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 9 is unavailable to, or
insufficient to hold harmless, an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by the Issuers and
the Guarantors on the one hand and any Initial Purchaser on the other shall be
deemed to be in the same proportion as the total proceeds from the offering
(before deducting expenses) received by the Issuers bear to the total discounts
and commissions received by such Initial Purchaser. The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Issuers
and the Guarantors on the one hand, or such Initial Purchaser on the other, the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission or alleged statement or omission,
and any other equitable considerations appropriate in the circumstances. The
Issuers and the Guarantors and the Initial Purchasers agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the first sentence of this
paragraph (d). Notwithstanding any other provision of this paragraph (d), no
Initial Purchaser shall be obligated to make contributions hereunder that in the
aggregate exceed the total discounts, commissions and other compensation
received by such Initial Purchaser under this Agreement, less the aggregate
amount of any damages that such Initial Purchaser has otherwise been required to
pay by reason of the untrue or alleged untrue statements or the omissions or
alleged omissions to state a material fact, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls an Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Initial Purchasers, and each
-28-
director or manager of the Issuers or any Guarantor, each officer of the Issuers
or any Guarantor and each person, if any, who controls the Issuers or any
Guarantor within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the Issuers and the
Guarantors.
10. SURVIVAL CLAUSE. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Issuers, the
Guarantors, their respective officers and the Initial Purchasers set forth in
this Agreement or made by or on behalf of them pursuant to this Agreement shall
remain in full force and effect, regardless of (i) any investigation made by or
on behalf of the Issuers, the Guarantors, any of their respective officers or
directors, the Initial Purchasers or any controlling person referred to in
Section 9 hereof and (ii) delivery of and payment for the Securities. The
respective agreements, covenants, indemnities and other statements set forth in
Sections 6, 9, 10, 15 and 16 hereof shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement.
11. DEFAULT BY AN INITIAL PURCHASER. If any one or more Initial
Purchasers shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Initial Purchaser hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Initial Purchasers shall be obligated severally to take
up and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in SCHEDULE 1 hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Initial Purchasers)
the Securities which the defaulting Initial Purchaser or Initial Purchasers
agreed but failed to purchase; PROVIDED, HOWEVER, that in the event that the
amount of Securities which the defaulting Initial Purchaser or Initial
Purchasers agreed but failed to purchase shall exceed 10% of the total aggregate
amount of Securities set forth in SCHEDULE 1 hereto, the remaining Initial
Purchasers shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting Initial
Purchasers do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Initial Purchaser or the Issuers except
as provided in Section 10 hereof. In the event of a default by any Initial
Purchaser as set forth in this Section 11, the Closing Date shall be postponed
for such period, not exceeding five business days, as the nondefaulting Initial
Purchasers shall determine in order that the required changes in the Final
Memorandum or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Initial Purchaser of
its liability, if any, to the Issuers or any nondefaulting Initial Purchaser for
damages occasioned by its default hereunder.
12. TERMINATION. (a) This Agreement may be terminated in the sole
discretion of the Initial Purchasers by notice to the Issuers given prior to the
Closing Date in the event that the Issuers and the Guarantors shall have failed,
refused or been unable to perform all obligations and satisfy all conditions on
their part to be performed or satisfied hereunder at
-29-
or prior thereto (other than solely as a result of any failure of any Initial
Purchaser to perform its obligations hereunder) or, if at or prior to the
Closing Date:
(i) any of the Parent or the Subsidiaries shall have sustained
any loss or interference with respect to its businesses or properties from
fire, flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any strike, labor dispute, slowdown or work stoppage
or any legal or governmental proceeding, which loss or interference, in the
sole judgment of the Initial Purchasers, has had or has a Material Adverse
Effect, or there shall have been, in the sole judgment of the Initial
Purchasers, any event or development that, individually or in the
aggregate, has or could be reasonably likely to have a Material Adverse
Effect (including without limitation a change in control of the Parent or
the Subsidiaries), except in each case as described in the Final Memorandum
(exclusive of any amendment or supplement thereto);
(ii) trading in securities of the Issuers or in securities
generally on the New York Stock Exchange, American Stock Exchange or the
Nasdaq National Market shall have been suspended or materially limited or
minimum or maximum prices shall have been established on any such exchange
or market;
(iii) a banking moratorium shall have been declared by New York or
United States authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, or (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or any other national or international calamity
or emergency, or (C) any material change in the financial markets of the
United States which, in the case of (A), (B) or (C) above and in the sole
judgment of the Initial Purchasers, makes it impracticable or inadvisable
to proceed with the offering or the delivery of the Notes as contemplated
by the Final Memorandum; or
(v) any securities of the Issuers shall have been downgraded or
placed on any "watch list" for possible downgrading by any nationally
recognized statistical rating organization.
(b) Termination of this Agreement pursuant to Section 11 or this
Section 12 shall be without liability of any party to any other party except as
provided in Section 10 hereof.
13. INFORMATION SUPPLIED BY THE INITIAL PURCHASERS. The
statements set forth in the last paragraph on the front cover page and in the
third sentence of the third para-
-30-
graph and the third sentence of the fifth paragraph under the heading "Private
Placement" in the Final Memorandum (to the extent such statements relate to the
Initial Purchasers) constitute the only information furnished by the Initial
Purchasers to the Issuers for the purposes of Sections 2(a) and 9 hereof.
14. NOTICES. All communications hereunder shall be in writing
and, if sent to the Initial Purchasers, shall be mailed or delivered to Deutsche
Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Finance Department, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇; if sent to
the Issuers, shall be mailed or delivered to the Issuers at Sterling Town
Center, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention:
Chief Financial Officer, with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; and one business day
after being timely delivered to a next-day air courier.
15. SUCCESSORS. This Agreement shall inure to the benefit of and
be binding upon the Initial Purchasers, the Issuers, the Guarantors and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained; this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Issuers and the Guarantors contained in Section 9 of this
Agreement shall also be for the benefit of any person or persons who control the
Initial Purchasers within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act and (ii) the indemnities of the Initial Purchasers contained in
Section 9 of this Agreement shall also be for the benefit of the directors of
the Issuers and Guarantors, their respective officers and any person or persons
who control the Issuers or any of the Guarantors within the meaning of Section
15 of the Act or Section 20 of the Exchange Act. No purchaser of Securities from
the Initial Purchasers will be deemed a successor because of such purchase.
16. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
-31-
17. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
S-1
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement among the Issuers,
the Guarantors and the Initial Purchasers.
Very truly yours,
ADVANCED ACCESSORY SYSTEMS, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary
AAS CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chairman
CHAAS ACQUISITIONS, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title:
AAS ACQUISITIONS, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
S-2
VALLEY INDUSTRIES, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary
VALTEK LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary
SPORTRACK, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary
S-3
The foregoing Agreement is hereby conf-
irmed and accepted as of the date first
above written.
DEUTSCHE BANK SECURITIES INC.
CREDIT SUISSE FIRST BOSTON LLC
By: Deutsche Bank Securities Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
SCHEDULE 1
PRINCIPAL
AMOUNT OF
INITIAL PURCHASER NOTES
----------------- -------------
Deutsche Bank Securities Inc.................................. $ 105,000,000
Credit Suisse First Boston LLC ............................... $ 45,000,000
Total $ 150,000,000
=============
SCHEDULE 2
SUBSIDIARIES OF THE PARENT
JURISDICTION OF
NAME INCORPORATION/FORMATION
--------------------------------------------------------------------------------
AAS Acquisitions, LLC Delaware
Brink Nordisk Holdings ApS Denmark
CHAAS Holdings B.V. Netherlands
CHAAS Holdings II B.V. Netherlands
CHAAS Holdings III B.V. Netherlands
Advanced Accessory Systems, LLC Delaware
SportRack, LLC Delaware
Valley Industries, LLC Delaware
Valtek, LLC (Delaware) Delaware
AAS Capital Corporation Delaware
SportRack Accessories Inc. Canada
Nomadic Sport Inc Netherlands
Brink International B.V Netherlands
Brink B.V. Netherlands
Brink Trekhaken B.V. Sweden
Brink Sverige AB France
Brink France S.a.r.L. France
Societe Francaise d'Equipements et d'Accessoires SA France
SCI L'Elmontaise, France
Ellebi s.r.l Italy
Brink U.K. Limited U.K.
Towforce UK Limited (currently dormant) U.K.
Nordisk Komponent Holding A/S Denmark
Brink A/S Denmark
Brink Polska Sp z.o.o. Poland
SportRack GmbH Germany
SportRack s.r.o. Czech Republic
SportRack Iberica Automotive, S.L. Unipersonal Spain