EXHIBIT 1.1
Dura Operating Corp.
Dura Automotive Systems, Inc.
Universal Tool & Stamping Company Inc.
Dura Automotive Systems Cable Operations, Inc.
Adwest Electronics, Inc.
Dura Automotive Systems of Indiana, Inc.
▇▇▇▇▇▇ Automotive Inc.
▇▇▇▇ I Molded Plastics of Tennessee, Inc.
▇▇▇▇▇▇ Mobile Products, Inc.
Dura G.P.
$350,000,000 8 5/8% Senior Notes due 2012
Purchase Agreement
dated April 4, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Securities LLC
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Comerica Securities Inc.
Scotia Capital (USA) Inc.
TABLE OF CONTENTS
-----------------
Introduction .......................................................... 1
Section 1. Representations and Warranties............................ 2
(a) No Registration Required.................................. 2
(b) No Integration of Offerings or General Solicitation....... 2
(c) Eligibility for Resale under Rule 144A.................... 3
(d) The Offering Memorandum................................... 3
(e) Incorporated Documents.................................... 3
(f) The Purchase Agreement.................................... 3
(g) The Registration Rights Agreement and DTC Agreement....... 3
(h) Authorization of the Securities and the Exchange
Securities................................................ 4
(i) Authorization of the Indenture............................ 4
(j) Description of the Securities and the Indenture........... 4
(k) No Material Adverse Change................................ 4
(l) Independent Accountants................................... 4
(m) Preparation of the Financial Statements................... 4
(n) Incorporation and Good Standing of the Company and its
Subsidiaries.............................................. 5
(o) Capitalization and Other Capital Stock Matters............ 5
(p) Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required...................... 5
(q) No Material Actions or Proceedings........................ 6
(r) Intellectual Property Rights.............................. 6
(s) All Necessary Permits, etc................................ 6
(t) Title to Properties....................................... 6
(u) Tax Law Compliance........................................ 7
(v) Company Not an "Investment Company"....................... 7
(w) No Price Stabilization or Manipulation.................... 7
(x) Solvency.................................................. 7
(y) No Unlawful Contributions or Other Payments............... 7
(z) Company's Accounting System............................... 7
(aa) Compliance with Environmental Laws........................ 7
(bb) Periodic Review of Costs of Environmental Compliance...... 8
(cc) ERISA Compliance.......................................... 8
i
(dd) Regulation S Requirements................................. 8
(ee) Reporting................................................. 9
Section 2. Purchase, Sale and Delivery of the Securities............. 9
(a) The Securities............................................ 9
(b) The Closing Date.......................................... 9
(c) Delivery of the Notes..................................... 9
(d) Delivery of Offering Memorandum to the Initial Purchasers. 9
(e) Initial Purchasers as Qualified Institutional Buyers...... 9
Section 3. Additional Covenants...................................... 9
(a) Initial Purchasers' Review of Proposed Amendments and
Supplements............................................... 9
(b) Amendments and Supplements to the Offering Memorandum and
Other Securities Act Matters.............................. 10
(c) Copies of the Offering Memorandum......................... 10
(d) Blue Sky Compliance....................................... 10
(e) Use of Proceeds........................................... 10
(f) The Depositary............................................ 11
(g) Additional Issuer Information............................. 11
(h) Future Reports to the Initial Purchasers.................. 11
(i) No Integration............................................ 11
(j) Legended Securities....................................... 11
(k) PORTAL.................................................... 11
Section 4. Payment of Expenses....................................... 11
Section 5. (a) Conditions of the Obligations of the Initial
Purchasers............................................ 12
(i) Accountant's Comfort Letter...................... 12
(ii) No Material Adverse Change or Ratings Agency
Change........................................... 12
(iii) Opinion of Counsel for the Company............... 12
(iv) Opinion of Counsel for the Initial Purchasers.... 12
(v) Officers' Certificate............................ 12
(vi) Bring-down Comfort Letter........................ 13
(vii) PORTAL........................................... 13
(viii) Registration Rights Agreement.................... 13
(ix) Additional Documents............................. 13
(b) Conditions to the Obligations of the Company and the Initial
Purchasers.............................................................. 13
Section 6. Reimbursement of Initial Purchasers' Expenses............. 13
ii
Section 7. Offer, Sale and Resale Procedures......................... 14
(i) Offers and Sales only to Qualified Institutional
Buyers........................................... 14
(ii) No General Solicitation.......................... 14
(iii) Restrictions on Transfer......................... 14
Section 8. Indemnification........................................... 15
(a) Indemnification of the Initial Purchasers................. 15
(b) Indemnification of the Company, its Directors and
Officers.................................................. 15
(c) Notifications and Other Indemnification Procedures........ 16
(d) Settlements............................................... 16
Section 9. Contribution.............................................. 17
Section 10. Termination of this Agreement............................. 17
Section 11. Representations and Indemnities to Survive Delivery....... 18
Section 12. Notices................................................... 18
Section 13. Successors................................................ 19
Section 14. Partial Unenforceability.................................. 19
Section 15. Governing Law Provisions.................................. 19
Section 16. Default of One or More of the Several Initial Purchasers.. 19
Section 17. General Provisions........................................ 19
Section 18. Agreement Among Initial Purchasers........................ 20
iii
Purchase Agreement
April 4, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ SECURITIES LLC
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
COMERICA SECURITIES INC.
SCOTIA CAPITAL (USA) INC.
As Initial Purchasers
c/o BANC OF AMERICA SECURITIES LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Introduction. Dura Operating Corp., a Delaware corporation
(the "Company"), proposes to issue and sell to Banc of America Securities LLC,
▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., Comerica Securities Inc.
and Scotia Capital (USA) Inc. (the "Initial Purchasers") an aggregate of
$350,000,000 in principal amount of its 8 5/8% Senior Notes due 2012 (the
"Notes") to be issued pursuant to the provisions of an indenture (the
"Indenture") to be dated as of the Closing Date (as defined in Section 2 below)
between the Company, Dura Automotive Systems, Inc., the direct parent
corporation of the Company ("DASI"), Universal Tool & Stamping Company Inc.,
Dura Automotive Systems Cable Operations, Inc., Adwest Electronics, Inc., Dura
Automotive Systems of Indiana, Inc., ▇▇▇▇▇▇ Automotive Inc., ▇▇▇▇ I Molded
Plastics of Tennessee, Inc., ▇▇▇▇▇▇ Mobile Products, Inc. and Dura G.P.
(collectively with DASI, the "Guarantors") and BNY Midwest Trust Company, as
trustee (the "Trustee"). Banc of America Securities LLC, ▇.▇. ▇▇▇▇▇▇ Securities
Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., Comerica Securities Inc. and Scotia Capital
(USA) Inc. have agreed to act as the Initial Purchasers in connection with the
offering and sale of the Notes.
Notes issued in book-entry form will be issued in the name of
Cede & Co., as nominee of The Depository Trust Company (the "Depositary")
pursuant to a DTC Agreement, to be dated as of the Closing Date (as defined in
Section 2) (the "DTC Agreement"), among the Company, the Trustee and the
Depositary.
The holders of the Notes will be entitled to the benefits of a
Registration Rights Agreement (the "Registration Rights Agreement") to be dated
the Closing Date, substantially in form and substance satisfactory to the
Company and the Initial Purchasers pursuant to which the Company will agree to
file, within 90 days of the Closing Date, a registration statement with the
Commission (as defined below) registering the Exchange Offer (as defined below)
under the Securities Act (as defined below).
The payment of principal of, premium and Liquidated Damages
(as defined in the Indenture), if any, and interest on the Notes and the
Exchange Notes (as defined below) will be fully and unconditionally guaranteed
on a senior unsecured basis, jointly and severally, by the Guarantors and any
subsidiary of the Company formed or acquired after the Closing Date that
executes an additional guarantee in accordance with the terms of the Indenture,
and their respective successors and assigns, pursuant to their guaranties (the
"Guaranties"). The Notes and the Guaranties attached thereto are herein
collectively referred to as the "Securities"; and the Exchange Notes and the
Guaranties attached thereto are herein collectively referred to as the "Exchange
Securities".
The Company understands that the Initial Purchasers propose to
make an offering of the Securities on the terms and in the manner set forth
herein and in the Offering Memorandum (as defined below) and agrees that the
Initial Purchasers may resell, subject to the conditions set forth herein, all
or a portion of the Securities to purchasers (the "Subsequent Purchasers") at
any time after the date of this Agreement. The Securities are to be
offered and sold to or through the Initial Purchasers without being registered
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933 (as amended, the "Securities Act," which term, as used
herein, includes the rules and regulations of the Commission promulgated
thereunder), in reliance upon exemptions therefrom. The terms of the Securities
and the Indenture will require that investors that acquire Securities expressly
agree that Securities may only be resold or otherwise transferred, after the
date hereof, if such Securities are registered for sale under the Securities Act
or if an exemption from the registration requirements of the Securities Act is
available (including the exemptions afforded by Rule 144A ("Rule 144A") or
Regulation S ("Regulation S") thereunder).
The Company will prepare and deliver to each Initial Purchaser
copies of an Offering Memorandum, dated April 4, 2002, prior to the Closing Date
(as defined in Section 2) describing the terms of the Securities, for use by
such Initial Purchaser in connection with its solicitation of offers to purchase
the Securities. As used herein, the "Offering Memorandum" shall mean, with
respect to any date or time referred to in this Agreement, the Company's
Offering Memorandum, dated April 4, 2002, including amendments or supplements
thereto, any exhibits thereto and the Incorporated Documents (as defined in
Section 1(e) below), in the most recent form that has been prepared and
delivered by the Company to the Initial Purchasers in connection with their
solicitation of offers to purchase Securities. Further, any reference to the
Offering Memorandum shall be deemed to refer to and include any Additional
Issuer Information (as defined in Section 3(g) below) furnished by the Company
prior to the completion of the distribution of the Securities.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Offering Memorandum (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which are incorporated by reference in the Offering Memorandum; and
all references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934 (as amended, the "Exchange Act," which term,
as used herein, includes the rules and regulations of the Commission promulgated
thereunder) which is incorporated or deemed to be incorporated by reference in
the Offering Memorandum.
The Company and the Guarantors hereby confirm their agreements
with the Initial Purchasers as follows:
Section 1. Representations and Warranties. The Company and the
Guarantors, jointly and severally, hereby represent, warrant and covenant to
each Initial Purchaser as follows:
(a) No Registration Required. Subject to compliance by the
Initial Purchasers with the representations and warranties set forth in
Section 2(e) hereof and with the procedures set forth in Section 7
hereof, it is not necessary in connection with the offer, sale and
delivery of the Securities to the Initial Purchasers and to each
Subsequent Purchaser in the manner contemplated by this Agreement and
the Offering Memorandum to register the Securities under the Securities
Act or, until such time as the Exchange Securities are issued pursuant
to an effective registration statement, to qualify the Indenture under
the Trust Indenture Act of ▇▇▇▇ (▇▇▇ "▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇," which term,
as used herein, includes the rules and regulations of the Commission
promulgated thereunder).
(b) No Integration of Offerings or General Solicitation. The
Company has not, directly or indirectly, solicited any offer to buy or
offered to sell, and will not, directly or indirectly, solicit any
offer to buy or offer to sell, in the United States or to any United
States citizen or resident, any security which is or would be
integrated with the sale of the Securities in a manner that would
require the Securities to be registered under the Securities Act. None
of the Company, its affiliates (as such term is defined in Rule 501(b)
under the Securities Act (each, an "Affiliate")), or, to the Company's
knowledge, any person acting on its or any of their behalf (other than
the Initial Purchasers, as to whom the Company makes no representation
or warranty) has engaged or will engage, in connection with the
offering of the Securities, in any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the
Securities Act. With respect to those Securities sold in reliance upon
Regulation S, (i) none of the Company, its Affiliates or, to the
Company's knowledge, any person acting on its or their behalf (other
than the Initial
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Purchasers, as to whom the Company makes no representation or warranty)
has engaged or will engage in any directed selling efforts within the
meaning of Regulation S and (ii) each of the Company and its Affiliates
and, to the Company's knowledge, any person acting on its or their
behalf (other than the Initial Purchasers, as to whom the Company makes
no representation or warranty) has complied and will comply with the
offering restrictions set forth in Regulation S.
(c) Eligibility for Resale under Rule 144A. The Securities are
eligible for resale pursuant to Rule 144A and will not be, at the
Closing Date, of the same class as securities listed on a national
securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated interdealer quotation system.
(d) The Offering Memorandum. The Offering Memorandum will not
as, of the date it bears, and at the Closing Date, include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that
this representation, warranty and agreement shall not apply to
statements in or omissions from the Offering Memorandum made in
reliance upon, and in conformity with, information furnished to the
Company in writing by any Initial Purchaser through Banc of America
Securities LLC expressly for use in the Offering Memorandum. The
Offering Memorandum, as of its date, will contain all the information
specified in, and meeting the requirements of, Rule 144A(d)(4). The
Company has not distributed and will not distribute, prior to the later
of the Closing Date and the completion of the Initial Purchasers'
distribution of the Securities, any offering material in connection
with the offering and sale of the Securities other than the Offering
Memorandum.
(e) Incorporated Documents. The Offering Memorandum will
incorporate by reference DASI's Annual Report on Form 10-K for the
fiscal year ended December 31, 2001 and Amendment No. 1 to DASI's
Annual Report on Form 10-K/A for the fiscal year ended December 31,
2001 (collectively, the "Annual Report"), and all documents filed by
DASI with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date hereof. The documents incorporated
or deemed to be incorporated by reference in the Offering Memorandum at
the time they were or hereafter are filed with the Commission
(collectively, the "Incorporated Documents") complied and will comply
in all material respects with the requirements of the Exchange Act.
(f) The Purchase Agreement. This Agreement has been duly
authorized, executed and delivered by, and is a valid and binding
agreement of, the Company and the Guarantors, enforceable in accordance
with its terms, except as rights to indemnification hereunder may be
limited by applicable law and except as the enforcement hereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies of
creditors or by general equitable principles.
(g) The Registration Rights Agreement and DTC Agreement. At
the Closing Date, each of the Registration Rights Agreement and the DTC
Agreement will be duly authorized, executed and delivered by, and will
be a valid and binding agreement of, the Company and the Guarantors,
enforceable in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights
and remedies of creditors or by general equitable principles and except
as rights to indemnification under the Registration Rights Agreement
may be limited by applicable law. Pursuant to the Registration Rights
Agreement, the Company will agree to file with the Commission, under
the circumstances set forth therein, (i) a registration statement under
the Securities Act relating to: another series of debt securities of
the Company with terms substantially identical to the Notes (the
"Exchange Notes") to be offered in exchange for the Notes (the
"Exchange Offer"), and (ii) to the extent required by the Registration
Rights Agreements, a shelf registration statement pursuant to Rule 415
of the Securities Act relating to the resale by certain holders of the
Notes, as the case may be, and in each case, to use its reasonable best
efforts to cause such registration statements to be declared effective.
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(h) Authorization of the Securities and the Exchange
Securities. (i) The Notes to be purchased by the Initial Purchasers,
from the Company are in the form contemplated by the Indenture, have
been duly authorized for issuance and sale pursuant to this Agreement
and the Indenture and, at the Closing Date, will have been duly
executed by the Company and, when authenticated in the manner provided
for in the Indenture and delivered against payment of the purchase
price therefor, will constitute valid and binding agreements of the
Company and the Guarantors enforceable in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights and remedies of creditors or by general
equitable principles and will be entitled to the benefits of the
Indenture. (ii) The Exchange Notes have been duly and validly
authorized for issuance by the Company, and when issued and
authenticated in accordance with the terms of the Indenture, the
Registration Rights Agreement and the Exchange Offer, will constitute
valid and binding obligations of the Company and the Guarantors
enforceable in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium, or similar laws relating to or affecting enforcement of the
rights and remedies of creditors or by general principles of equity and
will be entitled to the benefits of the Indenture. (iii) The Guaranties
of the Notes and the Exchange Notes are in the respective forms
contemplated by the Indenture, have been duly authorized for issuance
and sale pursuant to this Agreement and the Indenture and, at the
Closing Date, the Guaranties of the Notes will have been duly executed
by each of the applicable Guarantors and, when the Notes have been
authenticated in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor, will constitute valid
and binding agreements of the Guarantors, enforceable in accordance
with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or
by general equitable principles and will be entitled to the benefits of
the Indenture.
(i) Authorization of the Indenture. The Indenture has been
duly authorized by the Company and the Guarantors and, at the Closing
Date, will have been duly executed and delivered by the Company and the
Guarantors and will constitute a valid and binding agreement of the
Company and the Guarantors, enforceable in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights and remedies of creditors or by general
equitable principles.
(j) Description of the Securities and the Indenture. The
Notes, the Exchange Notes, the Guaranties of the Notes and the Exchange
Notes and the Indenture will conform in all material respects to the
respective statements relating thereto contained in the Offering
Memorandum.
(k) No Material Adverse Change. Except as otherwise disclosed
in the Offering Memorandum, subsequent to the respective dates as of
which information is given in the Offering Memorandum: (i) there has
been no material adverse change, or any development that could
reasonably be expected to result in a material adverse change, in the
financial condition, or in the earnings, business, operations or
prospects, whether or not arising from transactions in the ordinary
course of business, of DASI and its subsidiaries, considered as one
entity (any such change is called a "Material Adverse Change"); (ii)
DASI and its subsidiaries, considered as one entity, have not incurred
any material liability or obligation, indirect, direct or contingent,
not in the ordinary course of business nor entered into any material
transaction or agreement not in the ordinary course of business; and
(iii) there has been no dividend or distribution of any kind declared,
paid or made by DASI or, except for dividends paid to the Company or
other subsidiaries, any of its subsidiaries on any class of capital
stock or repurchase or redemption by DASI or any of its subsidiaries of
any class of capital stock.
(l) Independent Accountants. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have
expressed their opinion with respect to the financial statements (which
term as used in this Agreement includes the related notes thereto) of
DASI incorporated by reference in the Offering Memorandum, are
independent public or certified public accountants within the meaning
of Regulation S-X under the Securities Act and the Exchange Act.
(m) Preparation of the Financial Statements. The financial
statements of DASI, together with the related notes, incorporated by
reference in the Offering Memorandum present fairly the
4
consolidated financial position of DASI and its subsidiaries as of and
at the dates indicated and the results of their operations and cash
flows for the periods specified. Such financial statements of DASI have
been prepared in conformity with generally accepted accounting
principles as applied in the United States applied on a consistent
basis throughout the periods involved, except as may be expressly
stated in the related notes thereto. The historical financial data set
forth in the Offering Memorandum under the captions "Offering
Memorandum Summary--Summary Historical Financial Data" and in DASI's
Annual Report under the caption "Selected Financial Data" fairly
present the information set forth therein on a basis consistent with
that of the audited financial statements incorporated by reference in
the Offering Memorandum.
(n) Incorporation and Good Standing of the Company and its
Subsidiaries. Each of the Company, the Guarantors and each other
Significant Subsidiary (as that term is defined in Rule 1-02(w) of
Regulation S-X) has been duly incorporated or formed and is validly
existing in good standing under the laws of the jurisdiction of its
organization and has power and authority to own, lease and operate its
properties and to conduct its business as described in the Offering
Memorandum and, in the case of the Company and the Guarantors to enter
into and perform their respective obligations under each of this
Agreement, the Registration Rights Agreement, the DTC Agreement, the
Notes, the Exchange Notes and the Indenture. Each of the Company, the
Guarantors and each other Significant Subsidiary is duly qualified as a
foreign corporation or partnership to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except for such jurisdictions where the failure to
so qualify or to be in good standing would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse
Change. All of the issued and outstanding capital stock of the
Guarantors and each other Significant Subsidiary that is, in each case,
corporation has been duly authorized and validly issued, is fully paid
and nonassessable and (other than the capital stock of DASI) is owned
by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance or claim (except
for those set forth in the Offering Memorandum and such other security
interest, mortgage, pledge, lien, encumbrance or claim that would not
reasonably be expected to result in a Material Adverse Change). DASI
does not own or control, directly or indirectly, any corporation,
association or other entity other than the subsidiaries listed in
Exhibit 21 to DASI's Annual Report.
(o) Capitalization and Other Capital Stock Matters. At
December 31, 2001, on a consolidated basis, after giving pro forma
effect to the issuance and sale of the Notes pursuant hereto and the
other pro forma adjustments described therein, DASI would have an
authorized and outstanding capitalization as set forth in the Offering
Memorandum under the caption "Capitalization" (other than for
subsequent issuances of capital stock, if any, pursuant to employee
benefit plans incorporated by reference in the Offering Memorandum or
upon exercise of outstanding options described in the Offering
Memorandum). All of the outstanding shares of common stock of DASI, par
value $.01 per share (the "Common Stock"), have been duly authorized
and validly issued, are fully paid and nonassessable and have been
issued in compliance with federal and state securities laws. None of
the outstanding shares of Common Stock were issued in violation of any
preemptive rights, rights of first refusal or other similar rights to
subscribe for or purchase securities of DASI or the Company.
(p) Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. Neither the Company nor any of
the Guarantors or any other Significant Subsidiary is in violation of
its charter or by-laws or is in default (or, with the giving of notice
or lapse of time, would be in default) ("Default") under any indenture,
mortgage, loan or credit agreement, note, contract, franchise, lease or
other instrument to which the Company, the Guarantors or any other
Significant Subsidiary is a party or by which it or any of them may be
bound (including, without limitation, the Company's existing senior
credit facility), or to which any of the property or assets of the
Company, the Guarantors or any of its Significant Subsidiaries is
subject (each, an "Existing Instrument"), except for such Defaults as
would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Change. The Company's and the Guarantors'
execution, delivery and performance of this Agreement, the Registration
Rights Agreement, the DTC Agreement, and the Indenture, and the
issuance and delivery of the Notes or the Exchange Notes, and
consummation of the transactions contemplated hereby and thereby and by
the
5
Offering Memorandum (i) have been duly authorized by all necessary
action and will not result in any violation of the provisions of the
charter or by-laws of the Company, the Guarantors or any other
Significant Subsidiary of the Company, (ii) will not conflict with or
constitute a breach of, or Default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company, the Guarantors or any other Significant
Subsidiary of the Company pursuant to, or require the consent of any
other party to, any Existing Instrument, except for such conflicts,
breaches, Defaults, liens, charges or encumbrances as would not,
individually or in the aggregate, reasonably be expected to result in a
Material Adverse Change and (iii) will not result in any violation of
any law, administrative regulation or administrative or court decree
applicable to the Company, the Guarantors or any subsidiary of the
Company, except such violations of law, administrative regulation or
administrative or court decree that would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse
Change. No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental or
regulatory authority or agency, is required for the Company's or the
Guarantors' execution, delivery and performance of this Agreement, the
Registration Rights Agreement, the DTC Agreement, or the Indenture, or
the issuance and delivery of the Notes or the Exchange Notes, or
consummation of the transactions contemplated hereby and thereby and by
the Offering Memorandum, except (i) such as have been obtained or made
by the Company and are in full force and effect under the Securities
Act, applicable state securities or blue sky laws or (ii) such as may
be required by federal and state securities laws with respect to the
Company's obligations under the Registration Rights Agreement.
(q) No Material Actions or Proceedings. Except as otherwise
disclosed in the Offering Memorandum, there are no legal or
governmental actions, suits or proceedings pending or, to the best of
the Company's knowledge, threatened (i) against or affecting the
Company, the Guarantors or any other Significant Subsidiaries, (ii)
which has as the subject thereof any property owned or leased by, the
Company, the Guarantors or any other Significant Subsidiaries, where in
any such case (A) there is a reasonable possibility that such action,
suit or proceeding might be determined adversely to the Company, the
Guarantors or such Significant Subsidiary and (B) any such action, suit
or proceeding, if so determined adversely, would reasonably be expected
to result in a Material Adverse Change or adversely affect the
consummation of the transactions contemplated by this Agreement. No
material labor dispute with the employees of the Company, the
Guarantors or any other Significant Subsidiary, exists or, to the best
of the Company's knowledge, is threatened or imminent.
(r) Intellectual Property Rights. The Company and its
subsidiaries own or possess those trademarks, trade names, patent
rights, copyrights, licenses, approvals, trade secrets and other
similar rights (collectively, "Intellectual Property Rights") that are
material to the conduct of their businesses as now conducted; and the
expected expiration of any of such Intellectual Property Rights would
not reasonably be expected to result in a Material Adverse Change.
Neither the Company nor any of its subsidiaries has received any notice
of infringement or conflict with asserted Intellectual Property Rights
of others, which infringement or conflict, if the subject of an
unfavorable decision, would reasonably be expected to result in a
Material Adverse Change.
(s) All Necessary Permits, etc. Except as otherwise disclosed
in the Offering Memorandum, the Company, the Guarantors and each other
Significant Subsidiary possess all material certificates,
authorizations or permits necessary to conduct their respective
businesses, and neither the Company, the Guarantors nor any other
subsidiary of the Company has received any notice of proceedings
relating to the revocation or modification of, or non-compliance with,
any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, could reasonably be expected to result in a Material Adverse
Change.
(t) Title to Properties. DASI and each of its subsidiaries has
good and marketable title to all the properties and assets reflected as
owned in the financial statements referred to in Section 1(m) above (or
elsewhere in the Offering Memorandum), in each case free and clear of
any security interests, mortgages, liens, encumbrances, equities,
claims and other defects, except as otherwise disclosed in the Offering
Memorandum or such as do not materially interfere with the use made or
proposed to be made of such property by DASI or such subsidiary. The
real property, improvements, equipment and personal property
6
held under lease by DASI or any subsidiary are held under valid and
enforceable leases, with such exceptions as are not material and do not
materially interfere with the use made or proposed to be made of such
real property, improvements, equipment or personal property by DASI or
such subsidiary.
(u) Tax Law Compliance. DASI and its consolidated subsidiaries
have filed all necessary federal, state and foreign income and
franchise tax returns and have paid all taxes required to be paid by
any of them and, if due and payable, any related or similar assessment,
fine or penalty levied against any of them except as may be being
contested in good faith and by appropriate proceedings. DASI has made
adequate charges, accruals and reserves in the applicable financial
statements referred to in Section 1(m) above in respect of all federal,
state and foreign income and franchise taxes for all periods as to
which the tax liability of DASI or any of its consolidated subsidiaries
has not been finally determined.
(v) Company Not an "Investment Company". The Company is not,
and after receipt of payment for the Notes will not be, an "investment
company" within the meaning of Investment Company Act and will conduct
its business in a manner so that it will not become subject to the
Investment Company Act.
(w) No Price Stabilization or Manipulation. The Company has
not taken and will not take, directly or indirectly, any action
designed to or that might be reasonably expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Notes.
(x) Solvency. The Company is, and immediately after the
Closing Date will be, Solvent. As used herein, the term "Solvent"
means, with respect to the Company on a particular date, that on such
date (i) the fair market value of the assets of the Company is greater
than the total amount of liabilities (including contingent liabilities)
of the Company, (ii) the present fair salable value of the assets of
the Company is greater than the amount that will be required to pay the
probable liabilities of the Company on its debts as they become
absolute and matured, (iii) the Company is able to realize upon its
assets and pay its debts and other liabilities, including contingent
obligations, as they mature and (iv) the Company does not have
unreasonably small capital.
(y) No Unlawful Contributions or Other Payments. Except as
otherwise disclosed in the Offering Memorandum, neither DASI nor any of
its subsidiaries nor, to the best of the Company's knowledge, any
employee or agent of DASI or any subsidiary, has made any contribution
or other payment to any official of, or candidate for, any federal,
state or foreign office in violation of any law.
(z) Company's Accounting System. The Company maintains a
system of accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles as applied in
the United States and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability
for assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(aa) Compliance with Environmental Laws. Except as otherwise
disclosed in the Offering Memorandum or as would not, individually or
in the aggregate, reasonably be expected to result in a Material
Adverse Change (i) neither DASI nor any of its subsidiaries is in
violation of any federal, state, local or foreign law or regulation
relating to pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including
without limitation, laws and regulations relating to emissions,
discharges, releases or threatened releases of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum
and petroleum products (collectively, "Materials of Environmental
Concern"), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
7
of Materials of Environmental Concern (collectively, "Environmental
Laws"), which violation includes, but is not limited to, noncompliance
with any permits or other governmental authorizations required for the
operation of the business of DASI or its subsidiaries under applicable
Environmental Laws, or noncompliance with the terms and conditions
thereof, nor has DASI or any of its subsidiaries received any written
communication, whether from a governmental authority, citizens group,
employee or otherwise, that alleges that DASI or any of its
subsidiaries is in violation of any Environmental Law; (ii) there is no
claim, action or cause of action filed with a court or governmental
authority, no investigation with respect to which the Company has
received written notice, and no written notice by any person or entity
alleging potential liability for investigatory costs, cleanup costs,
governmental responses costs, natural resources damages, property
damages, personal injuries, attorneys' fees or penalties arising out
of, based on or resulting from the presence, or release into the
environment, of any Material of Environmental Concern at any location
owned, leased or operated by DASI or any of its subsidiaries, now or in
the past (collectively, "Environmental Claims"), pending or, to the
best of the Company's knowledge, threatened against DASI or any of its
subsidiaries or any person or entity whose liability for any
Environmental Claim DASI or any of its subsidiaries has retained or
assumed either contractually or by operation of law; and (iii) to the
best of the Company's knowledge, there are no past or present actions,
activities, circumstances, conditions, events or incidents, including,
without limitation, the release, emission, discharge, presence or
disposal of any Material of Environmental Concern, that reasonably
could result in a violation of any Environmental Law or form the basis
of a potential Environmental Claim against DASI or any of its
subsidiaries or against any person or entity whose liability for any
Environmental Claim DASI or any of its subsidiaries has retained or
assumed either contractually or by operation of law.
(bb) Periodic Review of Costs of Environmental Compliance. In
the ordinary course of its business, the Company conducts a periodic
review of the effect of Environmental Laws on the business, operations
and properties of DASI and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws
or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties).
On the basis of such review and the amount of its established reserves,
the Company has reasonably concluded that such associated costs and
liabilities would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Change.
(cc) ERISA Compliance. DASI and its subsidiaries and any
"employee benefit plan" (as defined under the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder (collectively, "ERISA"))
established or maintained by DASI, its subsidiaries or their "ERISA
Affiliates" (as defined below) are in compliance in all material
respects with ERISA or, if not in material compliance, would not
reasonably be expected to result in Material Adverse Change. "ERISA
Affiliate" means, with respect to DASI or a subsidiary, any member of
any group of organizations described in Sections 414(b), (c), (m) or
(o) of the Internal Revenue Code of 1986, as amended, and the
regulations and published interpretations thereunder (the "Code") of
which DASI or such subsidiary is a member. No "reportable event" (as
defined under ERISA) has occurred or is reasonably expected to occur
with respect to any "employee benefit plan" established or maintained
by DASI, its subsidiaries or any of their ERISA Affiliates. No
"employee benefit plan" established or maintained by DASI, its
subsidiaries or any of their ERISA Affiliates, if such "employee
benefit plan" were terminated, would have any material "amount of
unfunded benefit liabilities" (as defined under ERISA). Neither DASI,
its subsidiaries nor any of their ERISA Affiliates has incurred or
reasonably expects to incur any material liability under (i) Title IV
of ERISA with respect to termination of, or withdrawal from, any
"employee benefit plan" or (ii) Sections 412, 4971, 4975 or 4980B of
the Code. Each "employee benefit plan" established or maintained by the
Company, its subsidiaries or any of their ERISA Affiliates that is
intended to be qualified under Section 401(a) of the Code is so
qualified and nothing has occurred, whether by action or failure to
act, which would cause the loss of such qualification.
(dd) Regulation S Requirements. The Company, the Guarantors
and their respective affiliates and, to the best of their knowledge,
all persons acting on their behalf (other than the Initial Purchasers,
as to whom the Company and the Guarantors make no representation) have
complied with and will comply with
8
the offering restrictions requirements of Regulation S in connection
with the offering of the Securities outside the United States and, in
connection therewith, the Offering Memorandum will contain the
disclosure required by Rule 902(h).
(ee) Reporting. Each of the Company and the Guarantors is a
"reporting issuer" as defined in Rule 902 under the Securities Act.
Any certificate signed by an officer of the Company or the
Guarantors and delivered to the Initial Purchasers or to counsel for
the Initial Purchasers shall be deemed to be a representation and
warranty by the Company to each Initial Purchaser as to the matters set
forth therein.
Section 2. Purchase, Sale and Delivery of the Securities.
(a) The Securities. The Company agrees to issue and sell to
the several Initial Purchasers, severally and not jointly, all of the
Notes upon the terms herein set forth. On the basis of the
representations, warranties and agreements herein contained, and upon
the terms but subject to the conditions herein set forth, the Initial
Purchasers agree, severally and not jointly, to purchase from the
Company the aggregate principal amount of Notes set forth opposite
their names on Schedule A, at a purchase price of 98% of the principal
amount thereof plus accrued interest from April 18, 2002 payable on the
Closing Date.
(b) The Closing Date. Delivery of certificates for the Notes
in definitive form to be purchased by the Initial Purchasers and
payment therefor shall be made at the offices of ▇▇▇▇▇▇▇, Carton &
▇▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or such other place
as may be agreed to by the Company and the Initial Purchasers) at 10:00
a.m. Chicago time, on April 18, 2002, or such other time and date as
the Initial Purchasers and the Company shall agree (the time and date
of such closing are called the "Closing Date").
(c) Delivery of the Notes. The Company shall deliver, or cause
to be delivered, to Banc of America Securities LLC for the accounts of
the several Initial Purchasers certificates for the Notes at the
Closing Date against the irrevocable release of a wire transfer of
immediately available funds for the amount of the purchase price
therefor. The certificates for the Notes shall be in such denominations
and registered in the name of Cede & Co., as nominee of the Depository,
pursuant to the DTC Agreement, and shall be made available for
inspection on the business day preceding the Closing Date at a location
in Chicago, as the Initial Purchasers may designate. Time shall be of
the essence, and delivery at the time and place specified in this
Agreement is a further condition to the obligations of the Initial
Purchasers.
(d) Delivery of Offering Memorandum to the Initial Purchasers.
Not later than 12:00 p.m. on the fifth business day following the date
of this Agreement, the Company shall deliver or cause to be delivered
copies of the Offering Memorandum in such quantities and at such places
as the Initial Purchasers shall reasonably request.
(e) Initial Purchasers as Qualified Institutional Buyers. Each
Initial Purchaser severally and not jointly represents and warrants to,
and agrees with, the Company that it is a "qualified institutional
buyer" within the meaning of Rule 144A (a "Qualified Institutional
Buyer").
Section 3. Additional Covenants. The Company and the Guarantors further
covenant and agree with each Initial Purchaser as follows:
(a) Initial Purchasers' Review of Proposed Amendments and
Supplements. Prior to amending or supplementing the Offering Memorandum
(including any amendment or supplement through incorporation by
reference of any report filed under the Exchange Act), the Company
shall furnish to the Initial Purchasers for review a copy of each such
proposed amendment or supplement, and the Company
9
shall not use any such proposed amendment or supplement to which the
Initial Purchasers reasonably object.
(b) Amendments and Supplements to the Offering Memorandum and
Other Securities Act Matters. If, prior to the completion of the
placement of the Notes by the Initial Purchasers with the Subsequent
Purchasers, any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Offering Memorandum in
order to make the statements therein, in the light of the circumstances
when the Offering Memorandum is delivered to a purchaser, not
misleading, or if in the written opinion of the Initial Purchasers or
counsel for the Initial Purchasers it is otherwise necessary to amend
or supplement the Offering Memorandum to comply with applicable law,
the Company agrees to promptly prepare (subject to Section 3(a)
hereof), and furnish at its own expense to the Initial Purchasers,
amendments or supplements to the Offering Memorandum so that the
statements in the Offering Memorandum as so amended or supplemented
will not, in the light of the circumstances when the Offering
Memorandum is delivered to a purchaser, be misleading or so that the
Offering Memorandum, as amended or supplemented, will comply with
applicable law.
Following the consummation of the Exchange Offer or the
effectiveness of the shelf registration statement and for so long as
the Securities are outstanding if, in the reasonable judgment of the
Initial Purchasers, the Initial Purchasers or any of their affiliates
(as such term is defined in the rules and regulations under the
Securities Act) are required to deliver a prospectus in connection with
sales of, or market-making activities with respect to, such securities,
(A) to periodically amend the applicable registration statement so that
the information contained therein complies with the requirements of
Section 10(a) of the Securities Act, (B) to amend the applicable
registration statement or supplement the related prospectus or the
documents incorporated therein when necessary to reflect any material
changes in the information provided therein so that the registration
statement and the prospectus will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances existing
as of the date the prospectus is so delivered, not misleading and (C)
to provide the Initial Purchasers with copies of each amendment or
supplement filed and such other documents as the Initial Purchasers may
reasonably request.
The Company hereby expressly acknowledges that the
indemnification and contribution provisions of Sections 8 and 9 hereof
are specifically applicable and relate to each offering memorandum,
registration statement, prospectus, amendment or supplement referred to
in this Section 3(b).
(c) Copies of the Offering Memorandum. The Company agrees to
furnish the Initial Purchasers, without charge, as many copies of the
Offering Memorandum and any amendments and supplements thereto as they
shall have reasonably requested.
(d) Blue Sky Compliance. The Company shall cooperate with the
Initial Purchasers and counsel for the Initial Purchasers to qualify or
register the Notes for sale under (or obtain exemptions from the
application of) the Blue Sky or state securities laws of those
jurisdictions designated by the Initial Purchasers, shall comply with
such laws and shall continue such qualifications, registrations and
exemptions in effect so long as required for the distribution of the
Notes. The Company shall not be required to qualify as a foreign
corporation or to take any action that would subject it to general
service of process in any such jurisdiction where it is not presently
qualified or where it would be subject to taxation as a foreign
corporation. The Company will advise the Initial Purchasers promptly of
the suspension of the qualification or registration of (or any such
exemption relating to) the Notes for offering, sale or trading in any
jurisdiction or any initiation or threat of any proceeding for any such
purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company shall use its
best efforts to obtain the withdrawal thereof at the earliest possible
moment.
(e) Use of Proceeds. The Company shall apply the net proceeds
from the sale of the Notes sold by it in the manner described under the
caption "Use of Proceeds" in the Offering Memorandum.
10
(f) The Depositary. The Company will cooperate with the
Initial Purchasers and use its best efforts to permit the Securities to
be eligible for clearance and settlement through the facilities of the
Depositary.
(g) Additional Issuer Information. Prior to the completion of
the placement of the Securities by the Initial Purchasers with the
Subsequent Purchasers, DASI shall file, on a timely basis, with the
Commission and the Nasdaq National Market all reports and documents
required to be filed under Section 13 or 15(d) of the Exchange Act.
Additionally, at any time when the Company is not subject to Section 13
or 15(d) of the Exchange Act, for the benefit of holders and beneficial
owners from time to time of Notes, the Company shall furnish, at its
expense, upon request, to holders and beneficial owners of Notes and
prospective purchasers of Securities information ("Additional Issuer
Information") satisfying the requirements of subsection (d)(4) of Rule
144A.
(h) Future Reports to the Initial Purchasers. For so long as
any Notes or Exchange Notes remain outstanding, the Company will
furnish to Banc of America Securities LLC (i) as soon as reasonably
practicable after the end of each fiscal year, copies of the Annual
Report of DASI containing the balance sheet of DASI as of the close of
such fiscal year and statements of income, stockholders' equity and
cash flows for the year then ended and the opinion thereon of DASI's
independent public or certified public accountants; (ii) as soon as
practicable after the filing thereof, copies of each proxy statement,
Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current
Report on Form 8-K or other report filed by DASI with the Commission,
the National Association of Securities Dealers, Inc. or any securities
exchange; and (iii) as soon as available, copies of any report or
communication of DASI mailed generally to holders of its capital stock
or debt securities (including the holders of the Notes).
(i) No Integration. The Company agrees that it will not and
will use its best efforts to cause its Affiliates not to make any offer
or sale of securities of the Company of any class if, as a result of
the doctrine of "integration" referred to in Rule 502 under the
Securities Act, such offer or sale would render invalid (for the
purpose of (i) the sale of the Notes by the Company to the Initial
Purchasers, (ii) the resale of the Notes by the Initial Purchasers to
Subsequent Purchasers or (iii) the resale of the Notes by such
Subsequent Purchasers to others) the exemption from the registration
requirements of the Securities Act provided by Section 4(2) thereof or
by Rule 144A or by Regulation S thereunder or otherwise.
(j) Legended Securities. Each certificate for a Note will bear
the legend contained in "Notice to Investors" in the Offering
Memorandum for the time period and upon the other terms stated in the
Offering Memorandum.
(k) PORTAL. The Company will use its reasonable best efforts
to cause the Notes to be eligible for the National Association of
Securities Dealers, Inc. PORTAL market (the "PORTAL market").
Banc of America Securities LLC, on behalf of the several
Initial Purchasers, may, in its sole discretion, waive in writing the
performance by the Company of any one or more of the foregoing covenants or
extend the time for their performance.
Section 4. Payment of Expenses. The Company agrees to pay all costs,
fees and expenses incurred in connection with the performance of its obligations
hereunder and in connection with the transactions contemplated hereby, including
without limitation (i) all expenses incident to the issuance and delivery of the
Notes (including all printing and engraving costs), (ii) all necessary issue,
transfer and other stamp taxes in connection with the issuance and sale of the
Notes to the Initial Purchasers, (iii) all fees and expenses of the Company's
and the Guarantors' counsel, independent public or certified public accountants
and other advisors, (iv) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of the Offering
Memorandum (including financial statements and exhibits), and all amendments and
supplements thereto, (v) all filing fees, reasonable attorneys' fees and
expenses incurred by the Company or the Initial Purchasers in connection with
qualifying or registering (or obtaining exemptions from the qualification or
registration of, all or any part of the Securities for offer and sale under the
Blue Sky laws and, if requested by the Initial Purchasers, preparing and
printing a "Blue Sky
11
Survey" or memorandum, and any supplements thereto, advising the Initial
Purchasers of such qualifications, registrations and exemptions, (vi) the fees
and expenses of the Trustee, including the reasonable fees and disbursements of
counsel for the Trustee in connection with the Indenture, the Notes and the
Exchange Notes, (vii) any fees payable in connection with the rating of the
Notes or the Exchange Notes with the ratings agencies and the listing of the
Notes with the PORTAL market, (viii) all fees and expenses (including reasonable
fees and expenses of counsel) of the Company and the Guarantors in connection
with approval of the Notes by DTC for "book-entry" transfer, (ix) all roadshow
expenses of the Company's representatives and (x) the performance by the Company
and the Guarantors of their respective other obligations under this Agreement.
Except as provided in this Section 4, Section 6, Section 8 and Section 9 hereof,
the Initial Purchasers shall pay their own expenses, including the fees and
disbursements of their counsel.
Section 5. (a) Conditions of the Obligations of the Initial Purchasers.
The obligations of the several Initial Purchasers to purchase and pay for the
Notes, as provided herein on the Closing Date, shall be subject to the accuracy
of the representations and warranties on the part of the Company and the
Guarantors set forth in Section 1 hereof as of the date hereof and as of the
Closing Date as though then made and to the timely performance by the Company
and the Guarantors of their respective covenants and other obligations
hereunder, and to each of the following additional conditions:
(i) Accountant's Comfort Letter. On the date hereof, the
Initial Purchasers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
independent public or certified public accountants for DASI, a letter
dated the date hereof addressed to the Initial Purchasers, in form and
substance reasonably satisfactory to the Initial Purchasers, containing
statements and information of the type ordinarily included in
accountant's "comfort letters" to Initial Purchasers, delivered
according to Statement of Auditing Standards Nos. 72 and 86 (or any
successor bulletins), with respect to the audited and unaudited
financial statements and certain financial information contained in the
Offering Memorandum.
(ii) No Material Adverse Change or Ratings Agency Change. For
the period from and after the date of this Agreement and prior to the
Closing Date:
(A) in the judgment of the Initial
Purchasers there shall not have occurred any Material Adverse
Change; and
(B) there shall not have occurred any
downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the
possible change, in the rating accorded any securities of DASI
or any of its subsidiaries by any "nationally recognized
statistical rating organization" as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act.
(iii) Opinion of Counsel for the Company. On the Closing Date
the Initial Purchasers shall have received the opinion of ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇, counsel for the Company, dated as of such Closing Date, in form
and substance satisfactory to the Initial Purchasers and their counsel.
(iv) Opinion of Counsel for the Initial Purchasers. On the
Closing Date the Initial Purchasers shall have received the opinion of
▇▇▇▇▇▇▇, Carton & ▇▇▇▇▇▇▇, counsel for the Initial Purchasers, dated as
of such Closing Date, with respect to such matters as may be reasonably
requested by the Initial Purchasers and are customary in this type of
business.
(v) Officers' Certificate. On the Closing Date the Initial
Purchasers shall have received a written certificate executed by the
Chairman of the Board, Chief Executive Officer or President of the
Company and the Chief Financial Officer or Chief Accounting Officer of
the Company, dated as of the Closing Date, to the effect set forth in
subsection (a)(ii)(B) of this Section 5, and further to the effect
that:
12
(A) for the period from and after the date
of this Agreement and prior to the Closing Date there has not
occurred any Material Adverse Change;
(B) the representations, warranties and
covenants of the Company and the Guarantors set forth in
Section 1 of this Agreement are true and correct with the same
force and effect as though expressly made on and as of the
Closing Date; and
(C) the Company and the Guarantors have
complied in all material respects with all the agreements and
satisfied all the conditions on their respective parts to be
performed or satisfied at or prior to the Closing Date.
(vi) Bring-down Comfort Letter. On the Closing Date, the
Initial Purchasers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
independent public or certified public accountants for DASI, a letter
dated such date, in form and substance reasonably satisfactory to the
Initial Purchasers, to the effect that reaffirms the statements made in
the letter furnished by it pursuant to subsection (a)(i) of this
Section 5, except that the specified date referred to therein for the
carrying out of procedures shall be no more than three business days
prior to the Closing Date. If ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable to deliver
such letter because at such time ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, as a firm, is not
generally delivering letters of such type, the Initial Purchasers shall
have received a written certificate executed by the Chief Financial
Officer of the Company, dated as of the Closing Date, to the effect set
forth in Exhibit A attached hereto and in substance reasonably
satisfactory to the Initial Purchasers.
(vii) PORTAL. At the Closing Date the Notes shall have been
designated for trading on the PORTAL market.
(viii) Registration Rights Agreement. The Company and the
Guarantors shall have entered into the Registration Rights Agreement
and the Initial Purchasers shall have received executed counterparts
thereof.
(ix) Additional Documents. On or before the Closing Date, the
Initial Purchasers and counsel for the Initial Purchasers shall have
received such information, documents and opinions as they may
reasonably require for the purposes of enabling them to pass upon the
issuance and sale of the Securities as contemplated herein, or in order
to evidence the accuracy of any of the representations and warranties,
or the satisfaction of any of the conditions or agreements, herein
contained.
If any condition specified in this Section 5 is not satisfied
when and as required to be satisfied, this Agreement may be terminated by the
Initial Purchasers by notice to the Company at any time on or prior to the
Closing Date, which termination shall be without liability on the part of any
party to any other party, except that Section 4, Section 6, Section 8 and
Section 9 shall at all times be effective and shall survive such termination.
(b) Conditions to the Obligations of the Company and the
Initial Purchasers. The obligations of the several Initial Purchasers to
purchase and pay for the Notes and the obligations of the Company to issue and
sell the Notes, as provided herein on the Closing Date, shall be subject to the
following condition:
(i) The Company shall have received all necessary consents and
waivers from the requisite lenders under its senior credit facility.
Section 6. Reimbursement of Initial Purchasers' Expenses. If this
Agreement is terminated by the Initial Purchasers pursuant to Section 5, or if
the sale to the Initial Purchasers of the Securities on the Closing Date is not
consummated because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or to comply with any provision hereof,
the Company agrees to reimburse the Initial Purchasers (or such Initial
Purchasers as have terminated this Agreement with respect to themselves),
severally, upon demand for all out-of-pocket expenses
13
that shall have been reasonably incurred by the Initial Purchasers in
connection with the proposed purchase and the offering and sale of the
Securities, including but not limited to reasonable fees and disbursements of
counsel, printing expenses, travel expenses, postage, facsimile and telephone
charges.
Section 7. Offer, Sale and Resale Procedures. Each of the Initial
Purchasers, on the one hand, and the Company and each of the Guarantors, on the
other hand, hereby establish and agree to observe the following procedures in
connection with the offer and sale of the Securities:
(i) Offers and Sales only to Qualified Institutional Buyers.
Offers and sales of the Securities will be made only by the Initial
Purchasers or Affiliates thereof qualified to do so in the
jurisdictions in which such offers or sales are made. Each such offer
or sale shall only be made to persons whom the offeror or seller
reasonably believes to be (A) qualified institutional buyers (as
defined in Rule 144A under the Securities Act) or (B) non-U.S. persons
outside the United States to whom the offeror or seller reasonably
believes offers and sales of the Securities may be made in reliance
upon Regulation S under the Securities Act, upon the terms and
conditions set forth in Annex I hereto, which Annex I is hereby
expressly made a part hereof.
(ii) No General Solicitation. The Securities will be offered
by approaching prospective Subsequent Purchasers on an individual
basis. No general solicitation or general advertising (within the
meaning of Rule 502(c) under the Securities Act) will be used in the
United States in connection with the offering of the Securities.
(iii) Restrictions on Transfer. Upon original issuance by the
Company, and until such time as the same is no longer required under
the applicable requirements of the Securities Act, the Securities (and
all securities issued in exchange therefor or in substitution thereof,
other than the Exchange Securities) shall bear a legend in
substantially the following form:
THIS NOTE AND THE GUARANTEES ENDORSED HEREON HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR THE GUARANTEES
ENDORSED HEREON NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AND THE
GUARANTEES ENDORSED HEREON BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE WHICH IS
TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE
OWNER OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON (OR ANY
PREDECESSOR OF THIS NOTE AND THE GUARANTEES ENDORSED HEREON) (THE
"RESALE RESTRICTION TERMINATION DATE") ONLY (A) TO THE ISSUER, ITS
PARENT COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D) PRIOR TO
THE END OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING
OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO CLAUSE (E)
PRIOR TO THE RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THIS NOTE IS
14
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
Following the sale of the Securities by the Initial Purchasers to
Subsequent Purchasers pursuant to the terms hereof, the Initial
Purchasers shall not be liable or responsible to the Company for any
losses, damages or liabilities suffered or incurred by the Company,
including any losses, damages or liabilities under the Securities Act,
arising from or relating to any resale or transfer of any Security.
Section 8. Indemnification.
(a) Indemnification of the Initial Purchasers. The Company and
the Guarantors (for purposes of Sections 8, 9 and 10, the term Company
shall include the Guarantors), jointly and severally, agree to
indemnify and hold harmless each Initial Purchaser, its directors,
officers and employees, and each person, if any, who controls any
Initial Purchaser within the meaning of the Securities Act and the
Exchange Act against any loss, claim, damage, liability or expense, as
incurred, to which such Initial Purchaser or such controlling person
may become subject, under the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of the Company),
insofar as such loss, claim, damage, liability or expense (or actions
in respect thereof as contemplated below) arises out of or is based
upon any untrue statement or alleged untrue statement of a material
fact contained in the Offering Memorandum (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
and to reimburse each Initial Purchaser and each such controlling
person for any and all expenses (including the reasonable fees and
disbursements of counsel chosen by Banc of America Securities LLC) as
such expenses are reasonably incurred by such Initial Purchaser or such
controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, that the foregoing
indemnity agreement shall not apply to any loss, claim, damage,
liability or expense to the extent, but only to the extent, arising out
of or based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in reliance upon and in conformity
with written information furnished to the Company by the Initial
Purchasers expressly for use in the Offering Memorandum (or any
amendment or supplement thereto)
(b) Indemnification of the Company, its Directors and
Officers. Each Initial Purchaser agrees, severally and not jointly, to
indemnify and hold harmless the Company and each of its directors and
each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act, against any loss, claim, damage,
liability or expense, as incurred, to which the Company or any such
director, or controlling person may become subject, under the
Securities Act, the Exchange Act, or other federal or state statutory
law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the
written consent of such Initial Purchaser), insofar as such loss,
claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based upon any untrue or
alleged untrue statement of a material fact contained in the Offering
Memorandum (or any amendment or supplement thereto), or arises out of
or is based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in the Offering Memorandum (or
any amendment or supplement thereto), in reliance upon and in
conformity with written information furnished to the Company by the
Initial Purchasers expressly for use therein; and to reimburse the
Company, or any such director or controlling person for any legal and
other expenses reasonably incurred by the Company, or any such director
or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage,
liability, expense or action. The Company hereby acknowledges that the
only information that the Initial Purchasers have furnished to the
Company expressly for use in the Offering Memorandum (or any amendment
or supplement thereto) are the
15
statements set forth in the third paragraph, the first sentence of the
fourth paragraph, the second sentence of the sixth paragraph and the
eighth paragraph under the caption "Plan of Distribution" in the
Offering Memorandum; and the Initial Purchasers confirm that such
statements are correct. The indemnity agreement set forth in this
Section 8(b) shall be in addition to any liabilities that each Initial
Purchaser may otherwise have.
(c) Notifications and Other Indemnification Procedures.
Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against an indemnifying
party under this Section 8, notify the indemnifying party in writing of
the commencement thereof, but the omission so to notify the
indemnifying party will not relieve it from any liability which it may
have to any indemnified party for contribution or otherwise than under
the indemnity agreement contained in this Section 8 or to the extent it
is not prejudiced as a proximate result of such failure. In case any
such action is brought against any indemnified party and such
indemnified party seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to
participate in and, to the extent that it shall elect, jointly with all
other indemnifying parties similarly notified, by written notice
delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that a conflict may arise between
the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to select
separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to
such indemnified party of such indemnifying party's election so to
assume the defense of such action and approval by the indemnified party
of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party
shall not be liable for the expenses of more than one separate counsel
(together with local counsel), approved by the indemnifying party (Banc
of America Securities LLC in the case of Section 8(b) and Section 9),
representing the indemnified parties who are parties to such action) or
(ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the
action, in each of which cases the fees and expenses of counsel shall
be at the expense of the indemnifying party.
(d) Settlements. The indemnifying party under this Section 8
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final nonappealable judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party against
any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by Section 8(c) hereof, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior
to the date of such settlement or delivered notice to the indemnified
party of its good faith objection to such claim of indemnification. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement, compromise or consent to the
entry of judgment in any pending or threatened action, suit or
proceeding in respect of which any indemnified party is or could have
been a party and indemnity was or could have been sought hereunder by
such indemnified party, unless such settlement, compromise or consent
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action, suit or
proceeding.
16
Section 9. Contribution.
If the indemnification provided for in Section 8 is for any
reason held to be unavailable to or otherwise insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount paid or payable by such indemnified party, as incurred, as
a result of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Initial Purchasers,
on the other hand, from the offering of the Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company, on the one hand, and the Initial Purchasers, on the other
hand, in connection with the statements or omissions or inaccuracies in the
representations and warranties herein which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and the Initial Purchasers, on the other hand, in connection with the offering
of the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company, and the total discount received by the Initial Purchasers bear to
the aggregate initial offering price of the Securities. The relative fault of
the Company, on the one hand, and the Initial Purchasers, on the other hand,
shall be determined by reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact or any such inaccurate or alleged inaccurate
representation or warranty relates to information supplied by the Company, on
the one hand, or the Initial Purchasers, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in Section 8(c), any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth in
Section 8(c) with respect to notice of commencement of any action shall apply if
a claim for contribution is to be made under this Section 9; provided, however,
that no additional notice shall be required with respect to any action for which
notice has been given under Section 8(c) for purposes of indemnification.
The Company and the Initial Purchasers agree that it would not
be just and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation (even if the Initial Purchasers were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Initial
Purchaser shall be required to contribute any amount in excess of the discount
received by such Initial Purchaser in connection with the Securities distributed
by it. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations to contribute pursuant to this Section 9 are several,
and not joint, in proportion to their respective commitments as set forth
opposite their names in Schedule A. For purposes of this Section 9, each
director, officer and employee of an Initial Purchaser and each person, if any,
who controls an Initial Purchaser within the meaning of the Securities Act and
the Exchange Act shall have the same rights to contribution as such Initial
Purchaser, and each director of the Company, and each person, if any, who
controls the Company with the meaning of the Securities Act and the Exchange Act
shall have the same rights to contribution as the Company.
Section 10. Termination of this Agreement. Prior to the Closing Date,
this Agreement may be terminated by the Initial Purchasers by notice given to
the Company if at any time (i) trading or quotation in any of the Company's
securities shall have been suspended or limited by the Commission or by the
Nasdaq Stock Market, or trading in securities generally on either the Nasdaq
Stock Market or the New York Stock Exchange shall have been suspended or
limited, or minimum or maximum prices shall have been generally established on
any of such stock exchanges by the Commission or the NASD; (ii) a general
banking moratorium shall have been declared by
17
any federal or New York authorities; or (iii) there shall have occurred any
outbreak or escalation of national or international hostilities or any crisis or
calamity, or any change in the United States or international financial markets,
or any substantial change or development involving a prospective substantial
change in United States' or international political, financial or economic
conditions, as in the judgment of the Initial Purchasers is material and adverse
and makes it impracticable to market the Securities in the manner and on the
terms described in the Offering Memorandum or to enforce contracts for the sale
of securities; (iv) in the judgment of the Initial Purchasers there shall have
occurred any Material Adverse Change; or (v) the Company shall have sustained a
loss by strike, fire, flood, earthquake, accident or other calamity of such
character as in the judgment of the Initial Purchasers may interfere materially
with the conduct of the business and operations of the Company regardless of
whether or not such loss shall have been insured. Any termination pursuant to
this Section 10 shall be without liability on the part of (a) the Company to any
Initial Purchaser, except that the Company shall be obligated to reimburse the
expenses of the Initial Purchasers pursuant to Sections 4 and 6 hereof, (b) any
Initial Purchaser to the Company, or (c) any party hereto to any other party
except that the provisions of Section 8 and Section 9 shall at all times be
effective and shall survive such termination.
Section 11. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers and of the several Initial Purchasers
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Initial
Purchaser or the Company or any of its or their partners, officers or directors
or any controlling person, as the case may be, and will survive delivery of and
payment for the Securities sold hereunder and any termination of this Agreement.
Section 12. Notices. All communications hereunder shall be in writing
and shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
If to the Initial Purchasers:
Banc of America Securities LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇, Carton & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
If to the Company or the Guarantors:
Dura Operating Corp.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
18
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
Section 13. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto, including any substitute Initial Purchasers
pursuant to Section 16 hereof, and to the benefit of the employees, officers and
directors and controlling persons referred to in Section 8 and Section 9, and in
each case their respective successors, and no other person will have any right
or obligation hereunder. The term "successors" shall not include any purchaser
of the Securities as such from any of the Initial Purchasers merely by reason of
such purchase.
Section 14. Partial Unenforceability. The invalidity or
unenforceability of any Section, paragraph or provision of this Agreement shall
not affect the validity or enforceability of any other Section, paragraph or
provision hereof. If any Section, paragraph or provision of this Agreement is
for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
Section 15. GOVERNING LAW PROVISIONS. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
Section 16. Default of One or More of the Several Initial Purchasers.
If any one or more of the several Initial Purchasers shall fail or refuse to
purchase Notes that it or they have agreed to purchase hereunder on the Closing
Date, and the aggregate number of Notes which such defaulting Initial Purchaser
or Initial Purchasers agreed but failed or refused to purchase does not exceed
10% of the aggregate number of the Notes to be purchased on such date, the other
Initial Purchasers shall be obligated, severally, in the proportions that the
number of Notes set forth opposite their respective names on Schedule A bears to
the aggregate number of Notes set forth opposite the names of all such
non-defaulting Initial Purchasers, or in such other proportions as may be
specified by the Initial Purchasers with the consent of the non-defaulting
Initial Purchasers, to purchase the Notes which such defaulting Initial
Purchaser or Initial Purchasers agreed but failed or refused to purchase on such
date. If any one or more of the Initial Purchasers shall fail or refuse to
purchase Notes and the aggregate number of Notes with respect to which such
default occurs exceeds 10% of the aggregate number of Notes to be purchased on
the Closing Date, and arrangements satisfactory to the Initial Purchasers and
the Company for the purchase of such Notes are not made within 48 hours after
such default, this Agreement shall terminate without liability of any party to
any other party except that the provisions of Section 4, Section 6, Section 8
and Section 9 shall at all times be effective and shall survive such
termination. In any such case either the Initial Purchasers or the Company shall
have the right to postpone the Closing Date, as the case may be, but in no event
for longer than seven days in order that the required changes, if any, to the
Offering Memorandum or any other documents or arrangements may be effected.
As used in this Agreement, the term "Initial Purchaser" shall
be deemed to include any person substituted for a defaulting Initial Purchaser
under this Section 16. Any action taken under this Section 16 shall not relieve
any defaulting Initial Purchaser from liability in respect of any default of
such Initial Purchaser under this Agreement.
Section 17. General Provisions. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. This Agreement may be executed in two
or more counterparts, each one of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the
19
same instrument. This Agreement may not be amended or modified unless in writing
by all of the parties hereto, and no condition herein (express or implied) may
be waived unless waived in writing by each party whom the condition is meant to
benefit. The Table of Contents and the section headings herein are for the
convenience of the parties only and shall not affect the construction or
interpretation of this Agreement.
Section 18. Agreement Among Initial Purchasers. Each of the Initial
Purchasers agrees, by execution of this Agreement, that the Master Agreement
Among Underwriters, dated as of June 1994, with Banc of America Securities LLC
shall be applicable to the relationship among such Initial Purchasers in
connection with this Agreement.
20
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to the Company the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
Very truly yours,
DURA OPERATING CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President, Chief Financial
Officer and Assistant Secretary
DURA AUTOMOTIVE SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President, Chief Financial
Officer and Assistant Secretary
DURA AUTOMOTIVE SYSTEMS CABLE
OPERATIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President, Chief Financial
Officer and Treasurer
UNIVERSAL TOOL & STAMPING COMPANY INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President, Chief Financial
Officer and Treasurer
21
ADWEST ELECTRONICS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President, Chief Financial Officer
and Treasurer
DURA AUTOMOTIVE SYSTEMS OF INDIANA,
INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President, Chief Financial Officer
and Treasurer
▇▇▇▇▇▇ AUTOMOTIVE INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President, Chief Financial Officer
and Treasurer
▇▇▇▇ I MOLDED PLASTICS OF TENNESSEE,
INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President, Chief Financial Officer
and Treasurer
▇▇▇▇▇▇ MOBILE PRODUCTS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President, Chief Financial Officer
22
DURA G.P.
By: Dura Operating Corp.
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President, Chief Financial
Officer and Assistant Secretary
23
The foregoing Purchase Agreement is hereby confirmed and
accepted by the Initial Purchasers as of the date first above written.
BANC OF AMERICA SECURITIES LLC
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
COMERICA SECURITIES INC.
SCOTIA CAPITAL (USA) INC.
By: Banc of America Securities LLC
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------
▇▇▇ ▇▇▇▇▇
Managing Director
24
SCHEDULE A
Aggregate Principal
Amount of Notes to be
Initial Purchasers Purchased
Banc of America Securities LLC ........................... $148,750,000
▇.▇. ▇▇▇▇▇▇ Securities Inc................................ $122,500,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.................................. $ 61,250,000
Comerica Securities Inc................................... $ 8,750,000
Scotia Capital (USA) Inc.................................. $ 8,750,000
Total Notes...................................... $350,000,000
A-1
ANNEX I
Each Initial Purchaser understands that:
(a) Such Initial Purchaser agrees that it has not offered or
sold and will not offer or sell the Securities in the United States or
to, or for the benefit or account of, a U.S. Person (other than a
distributor), in each case, as defined in Rule 902 under the Securities
Act (i) as part of its distribution at any time and (ii) otherwise
until 40 days after the later of the commencement of the offering of
the Securities pursuant hereto and the Closing Date, other than in
accordance with Regulation S of the Securities Act or another exemption
from the registration requirements of the Securities Act. Such Initial
Purchaser agrees that, during such 40-day restricted period, it will
not cause any advertisement with respect to the Securities (including
any "tombstone" advertisement) to be published in any newspaper or
periodical or posted in any public place and will not issue any
circular relating to the Securities, except such advertisements as are
permitted by and include the statements required by Regulation S.
(b) Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Securities by it to any distributor, dealer
or person receiving a selling concession, fee or other remuneration
during the 40-day restricted period referred to in Rule 903(c)(2) under
the Securities Act, it will send to such distributor, dealer or person
receiving a selling concession, fee or other remuneration a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933, as amended (the "Securities
Act"), and may not be offered and sold within the United
States or to, or for the account or benefit of, U.S. persons
(i) as part of your distribution at any time or (ii) otherwise
until 40 days after the later of the date the Notes were first
offered to persons other than "distributors" (as defined in
Regulation S) in reliance upon Regulation S and the Closing
Date, except in either case in accordance with Regulation S
under the Securities Act (or Rule 144A) and in connection with
any subsequent sale by you of the Notes covered hereby in
reliance on Regulation S during the period referred to above
to any distributor, dealer or person receiving a selling
concession, fee or other remuneration, you must deliver a
notice to substantially the foregoing effect. Terms used above
have the meanings assigned to them in Regulation S."
EXHIBIT A
DURA AUTOMOTIVE SYSTEMS, INC.
OFFICER'S CERTIFICATE
This certificate is being delivered in connection with the
offering memorandum for $350,000,000 of 8 5/8% Senior Notes due 2012, dated
April 4, 2002 (the "Offering Memorandum"), of Dura Operating Corp., a Delaware
corporation and a wholly owned subsidiary of Dura Automotive Systems, Inc., a
Delaware corporation ("DASI"), by the undersigned, ▇▇▇▇▇ ▇. ▇▇▇▇▇, a certified
public accountant and the Vice President, Chief Financial Officer and Assistant
Secretary of DASI.
A. I have undertaken such investigation for purposes of this
Certificate as I deemed appropriate, including reviewing our books and records
and inquiring of other officials of DASI and its subsidiaries.
B. Attached hereto as Exhibit A are the unaudited consolidated
financial statements of DASI and its subsidiaries for January, February and
March of both 2001 and 2002. Based upon my review of these financial statements
and my investigation referred to above, I hereby certify as follows:
- No financial statements as of any date or for any period subsequent
to March 31, 2002 are available;
- The unaudited consolidated financial statements of DASI and its
subsidiaries for January, February and March of both 2001 and 2002
are stated on a basis substantially consistent with that of the
audited financial statements of DASI and its subsidiaries included
in the Offering Memorandum;
- At March 31, 2002, there had been no change in the capital stock
(other than stock option exercises), increase in long-term debt, or
decrease in consolidated working capital or in stockholders'
investment of DASI and its subsidiaries as compared with amounts
shown in the December 31, 2001 audited consolidated balance sheet
incorporated by reference in the Offering Memorandum except as set
forth below:
- For the period from January 1, 2002 to March 31, 2002, there have
been no decreases, as compared to the corresponding period in the
preceding year, in consolidated revenue or in the total amount of
net income, except in all instances for changes, increases, or
decreases that the Offering Memorandum discloses have occurred or
may occur and except as set forth below:
C. No financial statements are available for the period from
April 1, 2002 to the date hereof. As a result, my investigation of our results
for that period was limited to an analysis of the data available from our
financial reporting systems and inquiries of other officials of DASI and its
subsidiaries. Based on my analysis and inquiries, nothing has come to my
attention that has caused me to believe that:
- at the date hereof, there was any change in the capital stock
(other than stock option exercises), increase in long-term debt or
any decreases in consolidated working capital or in stockholders'
investment of DASI and its subsidiaries as compared with amounts
shown on the December 31, 2001 audited consolidated balance sheet
included in the Offering Memorandum except as set forth below:
- for the period from April 1, 2002 to the date hereof, there were
any decreases, as compared with the corresponding period in the
preceding year, in consolidated revenue or in the total amount of
net income, except in all instances for changes, increases, or
decreases that the Offering Memorandum discloses have occurred or
may occur and except as set forth below:
IN WITNESS WHEREOF, I have hereunto signed my name on this
__________ day of __________, 2002.
DURA AUTOMOTIVE SYSTEMS, INC.
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President, Chief
Financial Officer and
Assistant Secretary