Exhibit 10.1
EXECUTION COPY
$400,000,000
▇▇▇▇ CORPORATION
5-3/4% SENIOR NOTES DUE 2014
PURCHASE AGREEMENT
July 29, 2004
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Banc of America Securities LLC
Deutsche Bank Securities Inc.
ABN AMRO Incorporated
BNP Paribas Securities Corp.
Calyon Securities (USA) Inc.
Mizuho International plc
Scotia Capital (USA) Inc.
SunTrust Capital Markets, Inc.
Wachovia Capital Markets, LLC
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
1. Introductory. ▇▇▇▇ Corporation, a Delaware corporation (the "COMPANY"),
proposes, subject to the terms and conditions stated herein, to issue and sell
the several initial purchasers named in Schedule A hereto (the "PURCHASERS")
$400,000,000 principal amount of its 5-3/4% Senior Notes due 2014 (the "NOTES"),
to be guaranteed on a joint and several basis by the Guarantors listed on
Schedule B hereto (each a "GUARANTOR" and together, the "GUARANTORS"). The Notes
and the guarantees of the Guarantors (the "GUARANTEES" and, together with the
Notes, the "SECURITIES")) are to be issued pursuant to the provisions of an
Indenture dated as of August 3, 2004 (the "INDENTURE") among the Company, the
Guarantors and BNY Midwest Trust Company, as trustee (the "TRUSTEE").
The Securities will be offered without being registered under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), to qualified
institutional buyers in compliance with the exemption from registration provided
by Rule 144A under the Securities Act and in offshore transactions in reliance
on Regulation S under the Securities Act ("REGULATION S").
The Purchasers and their direct and indirect transferees will be entitled
to the benefits of a Registration Rights Agreement dated as of August 3, 2004
among the Company, the Guarantors and the Purchasers (the "REGISTRATION RIGHTS
AGREEMENT"). Pursuant to the Registration Rights Agreement, each of the Company
and the Guarantors has agreed to file with the Securities and Exchange
Commission (the "COMMISSION") (i) a registration statement (the "EXCHANGE OFFER
REGISTRATION STATEMENT") under the Securities Act registering the offering of
notes (the "EXCHANGE NOTES") and related guarantees with substantially identical
terms in all material respects to the Securities (except that the Exchange Notes
will not contain terms with respect to transfer restrictions or additional
interest) to be offered in exchange for the Securities and (ii) under certain
circumstances, a shelf registration statement pursuant to Rule 415 under the
Securities Act (the "SHELF REGISTRATION STATEMENT" and, together with the
Exchange Offer Registration Statement, the "REGISTRATION STATEMENTS").
In connection with the sale of the Securities, the Company has prepared a
preliminary offering memorandum (the "PRELIMINARY OFFERING DOCUMENT") and will
prepare a final offering memorandum (the OFFERING DOCUMENT") including or
incorporating by reference a description of the terms of the Securities, the
terms of the offering, and a description of the Company. As used herein, the
terms "PRELIMINARY OFFERING DOCUMENT" and "OFFERING DOCUMENT" shall include in
each case the documents incorporated by reference therein prior to the Closing
Date (as defined in Section 3). The terms "SUPPLEMENT", "AMENDMENT" and "AMEND"
as used herein with respect to either the Preliminary Offering Document or the
Offering Document shall include all documents deemed to be incorporated by
reference in the Preliminary Offering Document or Offering Document that are
filed with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT") subsequent to the date of such Offering Document
and prior to the Closing Date.
The Company and the Guarantors each hereby agrees with the several
Purchasers as follows:
2. Representations and Warranties of the Company and the Guarantors. The
Company and the Guarantors each represents and warrants to, and agrees with, the
several Purchasers that:
(a) (i) Each document filed or to be filed pursuant to the Exchange
Act and incorporated by reference in the Preliminary Offering Document or
the Offering Document (collectively, the "EXCHANGE ACT REPORTS") complied,
on the date originally filed, or will comply when so filed in all material
respects with the Exchange Act and the applicable rules and regulations of
the Commission thereunder and (ii) the Preliminary Offering Document as of
its date did not contain and the Offering Document, in the form used by
the Purchasers to confirm sales and on the Closing Date, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements in or omissions from the Preliminary Offering Document or the
Offering Document based upon written information furnished to the Company
by any Purchaser through ▇.▇. ▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇▇ Lynch,
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, as representatives (the
"REPRESENTATIVES") specifically for use therein, it being understood and
agreed that the only such information is that described as such in Section
7(b) hereof.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Offering Document; and the
Company is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification,
except to the extent that the failure to be so qualified would not
individually or in the aggregate have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole ("MATERIAL
ADVERSE EFFECT").
(c) The Company has an authorized capitalization as set forth in the
Offering Document under the heading "Capitalization."
(d) Each subsidiary of the Company, including, without limitation,
each of the Guarantors, has been duly incorporated and is an existing
corporation or other entity in good standing under the laws of the
jurisdiction of its formation, with power and authority (corporate or
other) to own its properties and conduct its business as described in the
Offering Document; and each subsidiary of the Company is duly qualified to
do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification except to the extent that the
failure to be so qualified would not individually or in the aggregate have
a Material Adverse Effect; all of the issued and outstanding capital stock
of each
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subsidiary of the Company has been duly authorized and validly issued and
is fully paid and nonassessable; and, except as otherwise disclosed in the
Offering Document, the capital stock of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects (other than liens and other encumbrances that
will be permitted under the terms of the Indenture).
(e) On the Closing Date, the Indenture will have been duly
authorized by the Company and each of the Guarantors and, when duly
executed and delivered in accordance with its terms by each of the parties
thereto, will constitute a valid and legally binding agreement of the
Company and each of the Guarantors enforceable against the Company and
each of the Guarantors in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; the Indenture will
conform in all material respects with the description thereof contained in
the Offering Document; and on the Closing Date, the Indenture will conform
in all material respects to the requirements of the Trust Indenture Act of
1939, as amended (the "TRUST INDENTURE ACT"), and the rules and
regulations of the Commission applicable to an indenture that is qualified
thereunder.
(f) On the Closing Date, the Notes will have been duly authorized by
the Company and, when duly executed, authenticated, issued and delivered
as provided in the Indenture and paid for as provided herein, will be duly
and validly issued and outstanding and will constitute valid and legally
binding obligations of the Company enforceable against the Company in
accordance with their terms and entitled to the benefits of the Indenture,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; the
Guarantees have been duly authorized by each of the Guarantors and, when
the Notes have been duly executed, authenticated, issued and delivered as
provided in the Indenture and paid for as provided herein, will be valid
and legally binding obligations of each of the Guarantors, enforceable
against each of the Guarantors in accordance with their terms and entitled
to the benefits of the Indenture, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and the Securities will conform in all material
respects with the description thereof contained in the Offering Document.
(g) On the Closing Date, the Exchange Notes and the related
guarantees will have been duly authorized by the Company and each of the
Guarantors and, when duly executed, authenticated, issued and delivered as
contemplated by the Registration Rights Agreement, will be duly and
validly issued and outstanding and will constitute valid and legally
binding obligations of the Company, as issuer, and each of the Guarantors,
as guarantor, enforceable against the Company and each of the Guarantors
in accordance with their terms and entitled to the benefits of the
Indenture, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Exchange Notes will conform in all material respects
with the description thereof contained in the Offering Document.
(h) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company and any person
that would give rise to a valid claim against the Company or any Purchaser
for a brokerage commission, finder's fee or other like payment in
connection with the offer and sale of the Securities.
(i) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required in
connection with the transactions contemplated herein or in the Indenture
or the Registration Rights Agreement, except (i) such as will be obtained
or made under the Securities Act, the Exchange Act, and the Trust
Indenture Act, (ii) such as may be required under the blue sky laws of any
state or the laws of any foreign jurisdiction in connection with the
purchase and distribution of the Securities by the Purchasers in the
manner contemplated herein and
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in the Offering Document and the Registration Rights Agreement and (iii)
such as may be required by the National Association of Securities Dealers,
Inc.
(j) Neither the Company nor any of its subsidiaries is in breach or
violation of any of the terms and provisions of, or in default under, any
statute, any rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over the Company or
any subsidiary of the Company or any of their material properties, or any
material agreement or instrument to which the Company or any such
subsidiary is a party or by which the Company or any such subsidiary is
bound or to which any of the material properties of the Company or any
such subsidiary is subject, or the charter or by-laws of the Company or
any such subsidiary where any such breach, violation or default would
reasonably be expected to have a Material Adverse Effect.
(k) The execution, delivery and performance by the Company and each
of the Guarantors of the Indenture, this Agreement and the Registration
Rights Agreement, the execution, delivery and performance by the Company
of the Notes, the execution, delivery and performance by the Guarantors of
the Guarantees, the compliance with the terms and provisions thereof and
the issuance and sale of the Securities will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction over
the Company or any subsidiary of the Company or any of their material
properties, or any material agreement or instrument to which the Company
or any such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the material properties of the
Company or any such subsidiary is subject, or the charter or by-laws of
the Company or any such subsidiary, and the Company and each of the
Guarantors has full power and authority to authorize, issue and sell the
Notes and the Guarantees, respectively, as contemplated by this Agreement.
(l) This Agreement has been duly authorized, executed and delivered
by the Company and each of the Guarantors. On the Closing Date, the
Registration Rights Agreement will have been duly authorized, and when the
Securities are delivered and paid for pursuant to this Agreement on the
Closing Date, the Registration Rights Agreement will have been duly
executed and delivered by the Company and each of the Guarantors and,
assuming the due authorization, execution and delivery the Purchasers,
will constitute a valid and legally binding obligation of the Company and
each of the Guarantors, enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles and except as rights to
indemnification and contribution may be limited under applicable law or
public policy considerations.
(m) Except as disclosed in the Offering Document, the Company and
its subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof by
them, with such exceptions as would not reasonably be expected to have a
Material Adverse Effect; and except as disclosed in the Offering Document,
the Company and its subsidiaries hold any leased real or personal property
under valid and enforceable leases with no exceptions that would have a
Material Adverse Effect.
(n) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(o) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
could be reasonably expected to have a Material Adverse Effect.
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(p) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that would reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
(q) Except as disclosed in the Offering Document, neither the
Company nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body or
any court, domestic or foreign, relating to the use, disposal or release
of hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or is subject to any claim relating to
any environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead to
such a claim.
(r) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect, or would materially and adversely affect the
ability of the Company or the Guarantors to perform their obligations
under the Indenture, this Agreement or the Registration Rights Agreement,
or which are otherwise material in the context of the sale of the
Securities; and no such actions, suits or proceedings are threatened or,
to the Company's knowledge, contemplated.
(s) The financial statements included in the Offering Document
present fairly in all material respects the financial position of the
Company and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and, except as
otherwise disclosed in the Offering Document, such financial statements
have been prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis; Ernst &
Young LLP, who have certified certain financial statements of the Company
and its subsidiaries, are independent public accountants as required by
the Securities Act and the rules and regulations of the Commission
thereunder.
(t) Except as disclosed in the Offering Document (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), since the date of the latest audited financial statements
included in the Offering Document there has been no material adverse
change, nor any development or event involving a prospective material
adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole, and, except as disclosed in or contemplated by the
Offering Document (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(u) The Company is subject to the reporting requirements of either
Section 13 or Section 15(d) of the Exchange Act.
(v) Neither the Company nor any of the Guarantors is an open-end
investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act of 1940 (the "INVESTMENT COMPANY ACT"); and neither
the Company nor any of the Guarantors is nor, after giving effect to the
offering and sale of the Securities
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and the application of the proceeds thereof as described in the Offering
Document, will be an "investment company" as defined in the Investment
Company Act.
(w) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Securities are listed on any
national securities exchange registered under Section 6 of the Exchange
Act or quoted in a U.S. automated inter-dealer quotation system.
(x) Assuming the accuracy of the representations and warranties, and
the performance of the covenants, of the Purchasers and the Company in
Section 4, the offer and sale of the Securities in the manner contemplated
by this Agreement will be exempt from the registration requirements of the
Securities Act by reason of Section 4(2) thereof; and until such time as
the Exchange Offer Registration Statement or the Shelf Registration
Statement is filed with the Commission, it is not necessary to qualify an
indenture in respect of the Securities under the Trust Indenture Act.
(y) Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf (i) has, within the six-month period prior
to the date hereof, offered or sold, in the United States or to any U.S.
person (as such terms are defined in Regulation S under the Securities
Act) the Securities or any security of the same class or series (as
defined in Rule 144A under the Securities Act) as the Securities or (ii)
has offered or will offer or sell the Securities (A) in the United States
by means of any form of general solicitation or general advertising within
the meaning of Rule 502(c) under the Securities Act or (B) with respect to
any such Securities sold in reliance on Rule 903 of Regulation S
("REGULATION S") under the Securities Act, by means of any directed
selling efforts within the meaning of Rule 902(c) of Regulation S. The
Company, its affiliates and any person acting on its or their behalf have
complied and will comply with the offering restrictions requirement of
Regulation S. The Company has not entered and will not enter into any
contractual arrangement with respect to the distribution of the Securities
except for this Agreement.
(z) The Company and, to the best knowledge of the Company, the
Company's directors and officers, in their capacities as such, are in
compliance with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 currently
applicable to the Company.
3. Purchase, Sale and Delivery of Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at a purchase price of 99.148% of the principal amount thereof
plus accrued interest from August 3, 2004 to the Closing Date of the Notes set
forth opposite the names of the several Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the Notes
in the form of one or more permanent global Notes in definitive form (the
"GLOBAL NOTES") deposited with the Trustee as custodian for The Depository Trust
Company ("DTC") and registered in the name of Cede & Co., as nominee for DTC.
Interests in any permanent global Notes will be held only in book-entry form
through DTC, except in the limited circumstances described in the Offering
Document. Payment for the Notes shall be made by the Purchasers in Federal (same
day) funds by wire transfer to an account at a bank specified by the Company and
acceptable to the Representatives to the order of the Company at the office of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York, New York at 9:00 A.M. (New York time),
on August 3, 2004, or at such other time not later than seven full business days
thereafter as the Representatives and the Company determine, such time being
herein referred to as the "CLOSING DATE", against delivery to the Trustee as
custodian for DTC of the Global Notes representing all of the Notes. The Global
Notes will be made available for checking at the above office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇ LLP at least 24 hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers
(a) Each Purchaser, severally and not jointly, represents and
warrants that such Purchaser is a qualified institutional buyer as defined
in Rule 144A under the Securities Act (a "QIB"). Each Purchaser, severally
and not jointly, agrees with the Company that:
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(1) it is purchasing the Securities pursuant to a
private sale exemption from registration under the Securities Act;
(2) it has not solicited offers for, or offered or sold,
and will not solicit offers for, or offer or sell, Securities by any
form of general solicitation or general advertising (as those terms
are used in Regulation D under the Securities Act) or in any manner
involving a public offering within the meaning of Section 4(2) of
the Securities Act; and
(3) it has solicited and will solicit offers for such
Securities only from, and has offered or sold and will offer such
Securities only to, persons that it reasonably believes to be (A) in
the case of offers inside the United States, QIBs and (B) in the
case of offers outside the United States, to persons other than
"U.S. persons" ("FOREIGN PURCHASERS," which term shall include
dealers or other professional fiduciaries in the United States
acting on a discretionary basis for foreign beneficial owners (other
than an estate or trust)) in "offshore transactions" (as such terms
are defined in Regulation S) in compliance with Regulation S under
the Securities Act.
(b) Each Purchaser, severally and not jointly, represents, warrants,
and agrees with respect to offers and sales outside the United States
that:
(1) such Purchaser understands that no action has been
or will be taken in any jurisdiction by the Company or the
Guarantors that would permit a public offering of the Securities, or
possession or distribution of either Offering Document or any other
offering or publicity material relating to the Securities, in any
country or jurisdiction where action for that purpose is required;
(2) such Purchaser has complied and will comply with all
applicable laws and regulations in each jurisdiction in which it
acquires, offers, sells or delivers Securities or has in its
possession or distributes either Memorandum or any such other
material, in all cases at its own expense;
(3) the Securities have not been registered under the
Securities Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons except
in accordance with Rule 144A or Regulation S under the Securities
Act or pursuant to another exemption from the registration
requirements of the Securities Act;
(4) such Purchaser has offered the Securities and will
offer and sell the Securities (A) as part of their distribution at
any time and (B) otherwise until 40 days after the later of the
commencement of the offering and the Closing Date, only in
accordance with Rule 903 of Regulation S or as otherwise permitted
in Section 4(a); accordingly, neither such Purchaser, its affiliates
nor any persons acting on its or their behalf have engaged or will
engage in any directed selling efforts (within the meaning of
Regulation S) with respect to the Securities, and any such
Purchaser, its affiliates and any such persons have complied and
will comply with the offering restrictions requirement of Regulation
S; and
(5) such Purchaser agrees that, at or prior to
confirmation of sales of the Securities, it will have sent to each
distributor, dealer or person receiving a selling concession, fee or
other remuneration that purchases Securities from it during the
restricted period a confirmation or notice to substantially the
following effect:
"The securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (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 their
distribution at any time or (ii) otherwise until
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40 days after the later of the commencement of the offering
and the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities
Act. Terms used above have the meaning given to them by
Regulation S."
Terms used in this Section 4(b) have the meanings given to them by
Regulation S.
(c) Each of the Purchasers severally represents and agrees that (i)
it has not offered or sold and, prior to the date six months after the
date of issuance of the Notes, will not offer or sell any Notes to persons
in the United Kingdom except to persons whose ordinary activities involve
them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to
the public in the United Kingdom within the meaning of the Public Offers
of Securities Regulations 1995 (as amended); (ii) it has only communicated
or caused to be communicated and will only communicate or cause to be
communicated any invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the Financial Services and Markets
Act 2000) received by it in connection with the issue or sale of any Notes
in circumstances in which Section 21(1) of the Financial Services and
Markets Act 2000 does not apply to the Company or the Guarantors; and
(iii) it has complied and will comply with all applicable provisions of
the Financial Services and Markets Act 2000 with respect to anything done
by it in relation to the notes in, from or otherwise involving the United
Kingdom.
5. Certain Agreements of the Company and the Guarantors. The Company and
each of the Guarantors agrees with the several Purchasers that:
(a) The Company will advise the Representatives promptly of any
proposal to amend or supplement the Offering Document and will not effect
such amendment or supplementation without the Representatives' consent,
which consent will not be unreasonably withheld or delayed. If, at any
time prior to the completion of the resale of the Securities by the
Purchasers, any event occurs as a result of which the Offering Document as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, the Company promptly will notify the
Representatives of such event (whereupon the Purchasers shall promptly
cease using the Offering Document) and promptly will prepare, at its own
expense, an amendment or supplement which will correct such statement or
omission. Neither the Representatives' consent to, nor the Purchasers'
delivery to offerees or investors of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 6.
(b) The Company will furnish to the Representatives copies of the
Offering Document and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the
Representatives request, and the Company will furnish to each of the
Representatives on the date hereof one copy of the Offering Document
signed by a duly authorized officer of the Company. At any time when the
Company is not subject to Section 13 or 15(d) of the Exchange Act, the
Company will promptly furnish or cause to be furnished to the
Representatives (and, upon request, to each of the other Purchasers) and,
upon request of holders and prospective purchasers of the Securities, to
such holders and purchasers, copies of the information required to be
delivered to holders and prospective purchasers of the Securities pursuant
to Rule 144A(d)(4) under the Securities Act (or any successor provision
thereto) in order to permit compliance with Rule 144A in connection with
resales by such holders of the Securities. The Company will pay the
expenses of printing and distributing to the Purchasers all such
documents.
(c) The Company will arrange for the qualification of the Securities
for sale and the determination of their eligibility for investment under
the laws of such jurisdictions in the United States as the Representatives
designate and will continue such qualifications in effect so long as
required for the resale of the Securities by the Purchasers, provided that
the Company will not be
8
required to qualify as a foreign corporation or to file a general consent
to service of process in any such state or subject itself to taxation in
any jurisdiction where it is not now so subject.
(d) During the period of two years after the Closing Date, the
Company will, upon request, furnish to the Representatives, each of the
other Purchasers and any holder of Securities a copy of the restrictions
on transfer applicable to the Securities.
(e) During the period of two years after the Closing Date, the
Company will not, and will not permit any of its affiliates (as defined in
Rule 144 under the Securities Act) to, resell any of the Securities that
have been reacquired by any of them.
(f) During the period of two years after the Closing Date, neither
the Company nor any Guarantor will be or become, an open-end investment
company, unit investment trust or face-amount certificate company that is
or is required to be registered under Section 8 of the Investment Company
Act.
(g) The Company will use the proceeds received from the sale of the
Securities in the manner specified in the Final Offering Document under
the caption "Use of Proceeds."
(h) The Company will obtain the approval of DTC for "book-entry"
transfer of the Notes, and comply with all of the agreements set forth in
the representations letters of the Company to DTC relating to the approval
by DTC of the Notes for "book-entry" transfer.
(i) The Company and the Guarantors will pay all expenses incidental
to the performance of its obligations under this Agreement, the Indenture
and the Registration Rights Agreement including (i) the fees and expenses
of the Trustee and its professional advisers; (ii) all expenses in
connection with the execution, issue, authentication, packaging and
initial delivery of the Securities, the preparation and printing of this
Agreement, the Registration Rights Agreement, the Indenture, the
Securities, the Preliminary Offering Document, the Offering Document and
amendments and supplements thereto, and any other document relating to the
issuance, offer, sale and delivery of the Securities and as applicable,
the Exchange Securities; (iii) any expenses (including fees and
disbursements of counsel) incurred in connection with qualification of the
Securities for sale under the laws of such jurisdictions in the United
States as the Representatives designate, subject to the limitations set
forth in Section 5(c), and the printing of memoranda relating thereto,
(iv) any fees charged by investment rating agencies for the rating of the
Securities, (v) the fees and expenses of their legal counsel and
accountants, (vi) all expenses incurred in connection with the performance
by the Company and the Guarantors of their obligations under the
Registration Rights Agreement; and (vii) any expenses incurred in
distributing the Preliminary Offering Document or the Offering Document
(including any amendments and supplements thereto) to the Purchasers.
(j) In connection with the offering, until the Representatives shall
have notified the Company and the other Purchasers of the completion of
the resale of the Securities, neither the Company nor any of its
affiliates has or will, either alone or with one or more other persons,
bid for or purchase for any account in which it or any of its affiliates
has a beneficial interest any Securities or attempt to induce any person
to purchase any Securities; and neither it nor any of its affiliates will
make bids or purchases for the purpose of creating actual, or apparent,
active trading in, or of raising the price of, the Securities.
(k) Neither the Company nor any affiliate will sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any security
(as defined in the Securities Act) which could be integrated with the sale
of the Securities in a manner which would require the registration under
the Securities Act of the Securities.
9
6. Conditions of the Obligations of the Purchasers. The obligations of the
several Purchasers to purchase and pay for the Securities on the Closing Date
will be subject to the accuracy of the representations and warranties on the
part of the Company and the Guarantors herein, to the accuracy of the statements
of officers of the Company made pursuant to the provisions hereof, to the
performance by the Company and the Guarantors of their obligations hereunder and
to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of
this Agreement, from Ernst & Young LLP in agreed form confirming that they
are independent public accountants within the meaning of the Securities
Act and the applicable published rules and regulations thereunder ("RULES
AND REGULATIONS") and to the effect that:
(i) in their opinion the financial statements examined by them
and incorporated by reference in the Offering Document and in the
Exchange Act Reports comply as to form in all material respects with
the applicable accounting requirements of the Securities Act and the
related published Rules and Regulations;
(ii) they have performed the procedures specified by the
Public Company Accounting Oversight Board for a review of interim
financial information as described in AU 772, Interim Financial
Information, on the unaudited financial information incorporated by
reference in the Offering Document and in the Exchange Act Reports;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial
information of the Company, inquiries of officials of the Company
who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited financial information and summary of
earnings incorporated by reference in Offering Document or in
the Exchange Act Reports do not comply as to form in all
material respects with the applicable accounting requirements
of the Securities Act and the related published Rules and
Regulations or any material modifications should be made to
unaudited financial statements for them to be in conformity
with generally accepted accounting principles;
(B) the unaudited consolidated net sales, net income and
income before extraordinary items and net income per share
amounts for the 6-month periods ended July 3, 2004 and June
28, 2003 incorporated by reference in the Offering Document
were not determined on a basis substantially consistent with
that of the corresponding amounts in the audited statements of
income; or
(C) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date
not more than three business days prior to the date of this
Agreement, there was any decrease in the capital stock or any
increase in long-term debt of the Company and its consolidated
subsidiaries or, at the date of the latest available balance
sheet read by such accountants, there was any decrease in
consolidated net current assets or net assets, as compared
with amounts shown on the latest balance sheet included or
incorporated by reference in the Offering Document or the
Exchange Act Reports;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Offering Document and
Exchange Act Reports disclose have occurred or may occur or which
are described in such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Offering Document and
the Exchange Act Reports (in each case to the extent that
10
such dollar amounts, percentages and other financial
information are derived from the general accounting records of
the Company and its subsidiaries subject to the internal
controls of the Company's accounting system or are derived
directly from such records by analysis or computation) with
the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and
other financial information to be in agreement with such
results, except as otherwise specified in such letter.
(b) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of the
Representatives, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the offering or the sale of and
payment for the Securities; (ii) any downgrading in the rating of any debt
securities (including convertible debt securities) of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or review
its rating of any debt securities (including convertible debt securities)
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating) or any announcement that the Company has been placed on negative
outlook; (iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as
would, in the judgment of the Representatives, be likely to prejudice
materially the success of the proposed issue, sale or distribution of the
Securities, whether in the primary market or in respect of dealings in the
secondary market, (iv) any material suspension or material limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any suspension
of trading of any securities of the Company on any exchange or in the
over-the-counter market; (v) any banking moratorium declared by U.S.
Federal or, New York authorities; (vi) any major disruption of settlements
of securities or clearance services in the United States or (vii) any
attack on, outbreak or escalation of hostilities or act of terrorism
involving the United States, any declaration of war by Congress or any
other national or international calamity or emergency if, in the judgment
of the Representatives, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it impractical
or inadvisable to proceed with completion of the offering or sale of and
payment for the Securities.
(c) The Purchasers shall have received an opinion, dated the Closing
Date, of Winston & ▇▇▇▇▇▇ LLP, counsel for the Company, that (subject to
customary qualifications and exceptions):
(i) The Company, and each of the Guarantors that are organized
in Delaware (the "DELAWARE GUARANTORS"), is a business entity duly
incorporated or formed, as applicable, validly existing and in good
standing under the laws of the State of Delaware and is duly
qualified to do business and in good standing as a foreign
corporation, foreign limited liability company or foreign limited
partnership, as applicable, in each other jurisdiction in which its
ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so
qualified and in good standing would not have a Material Adverse
Effect; and the Company and each of the Delaware Guarantors has all
corporate, limited liability company or limited partnership power
and authority, as applicable, necessary to own or hold its
properties and to conduct the business in which it is engaged as
described in the Offering Document;
(ii) The Purchase Agreement has been duly authorized by all
necessary corporate, limited liability company or partnership
action, as applicable, on the part of the Company and each of the
Delaware Guarantors, and has been duly executed and delivered by the
Company and the Guarantors;
11
(iii) The Registration Rights Agreement has been duly
authorized by all necessary corporate, limited liability company or
limited partnership action, as applicable, on the part of the
Company and each of the Delaware Guarantors, has been duly executed
and delivered by the Company and the Guarantors and constitutes a
valid and legally binding agreement, enforceable against the Company
and each of the Guarantors in accordance with its terms;
(iv) The Indenture has been duly authorized by all necessary
corporate, limited liability company or limited partnership action,
as applicable, on the part of the Company and each of the Delaware
Guarantors, has been duly executed and delivered by the Company and
the Guarantors and constitutes a valid and legally binding
agreement, enforceable against the Company and each of the
Guarantors in accordance with its terms;
(v) The Notes have been duly authorized by all necessary
corporate action of the Company and, when executed and authenticated
in accordance with the provisions of the Indenture and delivered to
and paid for by the Purchasers in accordance with the terms of the
Purchase Agreement, will be valid and legally binding obligations of
the Company, enforceable against the Company in accordance with
their terms and entitled to the benefits of the Indenture;
(vi) The Guarantees have been duly authorized by all necessary
corporate, limited liability company or limited partnership action,
as applicable, by each of the Delaware Guarantors and, when the
Notes are authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Purchasers in
accordance with the terms of the Purchase Agreement, the Guarantees
will be valid and legally binding obligations of the Guarantors,
enforceable against the Guarantors in accordance with their terms
and entitled to the benefits of the Indenture;
(vii) The statements made in the Offering Document under the
caption "Description of the notes," insofar as such statements
purport to constitute summaries of the legal matters or the terms of
certain documents referred to therein, fairly present the
information with respect to such legal matters and terms of such
documents and fairly summarize the matters referred to therein, in
each case, in all material respects;
(viii) The statements made in the Offering Document under the
caption "Certain United States federal income tax consequences,"
insofar as such statements purport to constitute a summary of the
United States federal tax laws referred to therein, are accurate and
present a fair summary of the United States federal tax laws
referred to therein, in each case, in all material respects;
(ix) Neither the Company nor any of the Guarantors is and,
immediately after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described
in the Offering Document, will be an "investment company" as such
term is defined in the Investment Company Act;
(x) Assuming the accuracy of the representations and
warranties, and the performance of the covenants, of the Company,
the Guarantors and the Purchasers contained in this Agreement, no
registration under the Securities Act of the Securities is required
in connection with the sale of the Securities to the Purchasers as
contemplated by the Purchase Agreement and the Offering Document or
in connection with the initial resale of the Securities by the
Purchasers in the manner contemplated by the Purchase Agreement and
the Offering Document, and, prior to the effectiveness of a
Registration Statement, the Indenture is not required to be
qualified under the Trust Indenture Act; and
12
(xi) No consent, approval, authorization or order of, or
filing with, any governmental body or agency or any court of the
State of New York or the United States of America or in relation to
the Delaware General Corporation Law, the Delaware Limited Liability
Company Act or the Delaware Revised Uniform Limited Partnership Act
is required for the performance by the Company under the Purchase
Agreement, the Registration Rights Agreement and the Indenture in
connection with the issuance or sale of the Notes (except such
filings, consents, authorizations, permits, orders and other matters
which may be required under (a) applicable "blue sky" or state
securities laws or the laws of any country other than the United
States in connection with the offer and sale of the Notes and (b)
Federal and state securities laws with respect to the obligations of
the Company under the Registration Rights Agreement, as to which no
opinion need be expressed);
In addition, such counsel shall state that they have participated in
conferences with officers and representatives of the Company,
representatives of the independent public accountants of the Company, and
representatives of the Representatives at which the contents of the
Offering Document and related matters were discussed, they have not
independently verified and are not passing upon and assume no
responsibility for the accuracy, completeness or fairness of the
statements contained in the Offering Document (except as set forth in
paragraphs (vii) and (viii) above), and have made no independent check or
verification thereof. However, based on the foregoing, no facts have come
to their attention which caused them to believe that the Offering Document
(including the Exchange Act Reports incorporated by reference therein
filed prior to the Closing Date) as of its date and at such Closing Date,
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel will express no belief
as to the financial statements or other financial data and accounting
information included or incorporated by reference in or omitted from the
Offering Document).
(d) The Purchasers shall have received an opinion, dated such
Closing Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, general counsel of the Company, that
(subject to customary qualifications and exceptions):
(i) Except as otherwise disclosed in the Offering Memorandum,
the capital stock, membership interests and partnership interests,
as the case may be, of each of the Delaware Guarantors is owned,
directly or through subsidiaries, by the Company, free and clear of
all liens, encumbrances and defects, except for those liens and
encumbrances permitted under the terms of the Indenture;
(ii) The execution, delivery and performance of the Company
and each of the Delaware Guarantors of its obligations under the
Purchase Agreement, the Registration Rights Agreement, the
Indenture, the Securities (in the case of the Company) and the
Guarantees (in the case of each of the Delaware Guarantors) and the
issuance and sale of the Securities and compliance with the terms
and provisions thereof, will not (a) to the best of such counsel's
knowledge, violate or result in a breach in any material respect of
any of the terms or provisions of any agreement or other instrument
to which the Company or any of its subsidiaries is a party that is
material to the Company and its subsidiaries, taken as a whole, (b)
violate or result in a breach of any term of the Certificate of
Incorporation, Certificate of Formation or Certificate of Limited
Partnership, as applicable, of the Company or any of the Delaware
Guarantors, each as currently in effect, (c) violate the By-laws of
the Company or any of the Delaware Guarantors that is a corporation,
each as currently in effect, the Operating Agreement of Lear
Technologies LLC, as currently in effect, the Limited Partnership
Agreement of Lear Midwest Automotive, Limited Partnership, as
currently in effect or (d) violate or contravene any applicable law
or, to the best of such counsel's knowledge, any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over the Company or any of the Delaware Guarantors;
13
(iii) The Company has full power and authority to authorize,
issue and sell the Notes as contemplated by this Agreement; and
(iv) Except as disclosed in the Offering Document, there is no
legal or governmental proceeding pending or, to the best knowledge
of such counsel, after due inquiry, threatened to which the Company
or any of its subsidiaries is a party, or to which any of their
respective properties are subject, other than proceedings which such
counsel believes would not reasonably be expected to have a material
adverse effect upon the Company and its subsidiaries, taken as a
whole.
(e) The Purchasers shall have received an opinion, dated the Closing
Date, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, S.C., counsel for ▇▇▇▇ Corporation Mexico S.A.
de C.V., and of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for ▇▇▇▇
Automotive (▇▇▇▇) Spain S.L., that (subject to customary qualifications
and exceptions):
(i) The relevant Guarantor has been duly incorporated and is
an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business
as presently conducted;
(ii) This Agreement, the Indenture and the Registration Rights
Agreement have been duly authorized, executed and delivered by the
relevant Guarantor; the Guarantees issued on the Closing Date have
been duly authorized, executed, authenticated, and issued; and the
Indenture, the Registration Rights Agreement, and the Guarantees
delivered on the Closing Date constitute valid and legally binding
obligations of such Guarantor enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(iii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by
this Agreement, the Registration Rights Agreement and the Indenture
in connection with the issuance and sale of the Notes by the Company
and the issuance of the Guarantees by the relevant Guarantor, except
such as may be required under state securities laws except for the
order of the Commission declaring the Registration Statement
effective; and
(iv) The execution, delivery and performance of the Indenture,
this Agreement and the Registration Rights Agreement by the relevant
Guarantor, and the issuance and sale of the Securities and
compliance with the terms and provisions thereof will not result in
a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over such Guarantor or any of its properties, or any
agreement or instrument to which such Guarantor is a party or by
which such Guarantor or any of its subsidiaries is bound or to which
any of the properties of the Company or any such subsidiary is
subject, or the charter or by-laws of such Guarantor or any of its
subsidiaries, and such Guarantor has full power and authority to
authorize and issue the Guarantees as contemplated by this
Agreement.
(f) The Purchasers shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, counsel for the Purchasers, such opinion or opinions, dated
the Closing Date, with respect to the incorporation of the Company, the
validity of the Securities, the Offering Memorandum, the exemption from
registration for the offer and sale of Securities by the Company to the
several Purchasers and the resales by the several Purchasers as
contemplated hereby and other related matters as the
14
Representatives may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(g) The Purchasers shall have received a certificate, dated the
Closing Date, of the Vice Chairman, President or any Senior Vice President
or Vice President and a principal financial or accounting officer of the
Company in which such officers, to the best of their knowledge after
reasonable investigation, shall state that the representations and
warranties of the Company in this Agreement are true and correct, that the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the Closing
Date, and that, subsequent to the respective dates of the most recent
financial statements in the Offering Document (including the Exchange Act
Reports incorporated by reference therein but exclusive of any amendments
or supplements thereto subsequent to the date of this Agreement) there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company and
its subsidiaries taken as a whole except as set forth in or contemplated
by the Offering Document or as described in such certificate.
(h) The Purchasers shall have received a letter, dated the Closing
Date, of Ernst & Young LLP which meets the requirements of subsection (a)
of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to the Closing
Date for the purposes of this subsection.
(i) The Purchasers and their counsel shall have received such other
documents and certifications as they may reasonably request.
Documents described as being "in the agreed form" are documents that
are in the forms which have been initialed for the purpose of
identification by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, copies of which are held
by the Company and the Representatives, with such changes as the
Representatives may approve.
The Company will furnish the Purchasers with such conformed copies
of such opinions, certificates, letters and documents as the Purchasers
reasonably request. The Representatives may in their sole discretion waive
on behalf of the Purchasers compliance with any conditions to the
obligations of the Purchasers hereunder.
7. Indemnification and Contribution.
(a) Each of the Company and the Guarantors jointly and severally
will indemnify and hold harmless each Purchaser, its partners, directors
and officers and each person, if any, who controls such Purchaser within
the meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such Purchaser
may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Offering Document, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
including any losses, claims, damages or liabilities arising out of or
based upon the Company's failure to perform its obligations under Section
5(a) of this Agreement, and will reimburse each Purchaser for any legal or
other expenses reasonably incurred by such Purchaser in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that neither the
Company nor the Guarantors will be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any
Purchaser through the Representatives specifically for use therein, it
being
15
understood and agreed that the only such information consists of the
information described as such in subsection (b) below.
(b) The Purchasers will severally and not jointly indemnify and hold
harmless the Company and the Guarantors, their directors and officers and
each person, if any, who controls the Company or the Guarantors within the
meaning of Section 15 of the Securities Act, against any losses, claims,
damages or liabilities to which the Company or any Guarantor may become
subject, under the Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Offering
Document, or any amendment or supplement thereto, or arise out of or are
based upon the omission or the alleged omission to state therein a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished
to the Company by such Purchaser through the Representatives specifically
for use therein, and will reimburse any legal or other expenses reasonably
incurred by the Company or any Guarantor in connection with investigating
or defending any such loss, claim, damage, liability or action as such
expenses are incurred, it being understood and agreed that the only such
information furnished by any Purchaser consists of (i) the following
information in the Offering Document: the third paragraph under the
caption "Plan of distribution"; provided, however, that the Purchasers
shall not be liable for any losses, claims, damages or liabilities arising
out of or based upon the Company's failure to perform its obligations
under Section 5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party 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 otherwise than under
subsection (a) or (b) above. In any such proceeding, the indemnifying
party shall be entitled to participate in such proceeding and, to the
extent that it so elects, jointly with any other similarly notified
indemnifying party, to assume the defense thereof, subject to the right of
the indemnified party to retain its own counsel, be separately represented
and to direct its own defense if (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and the indemnified party has been advised by counsel that
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. In any
proceeding described in clause (i) or (ii) of the preceding sentence, the
fees and expenses of counsel retained by the indemnified party shall be at
the expense of the indemnifying party. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified parties in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses
of more than one separate firm (in addition to any local counsel) for all
such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of
any pending or threatened action in respect of which any indemnified party
is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement includes (i) an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or failure
to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate
16
to reflect the relative benefits received by the Company and the
Guarantors on the one hand and the Purchasers on the other from the
offering of the Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the
Guarantors on the one hand and the Purchasers on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Guarantors on the one hand and the Purchasers on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
discounts and commissions received by the Purchasers from the Company
under this Agreement. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company and the Guarantors or
the Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence
of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection
(d), no Purchaser shall be required to contribute any amount in excess of
the amount by which the total price at which the Securities purchased by
it were resold exceeds the amount of any damages which such Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. The Purchasers' obligations in
this subsection (d) to contribute are several in proportion to their
respective purchase obligations and not joint.
(e) The obligations of the Company and the Guarantors under this
Section shall be in addition to any liability which the Company and the
Guarantors may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Purchaser within the
meaning of the Securities Act or the Exchange Act; and the obligations of
the Purchasers under this Section shall be in addition to any liability
which the respective Purchasers may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls the
Company and each Guarantor within the meaning of the Securities Act or the
Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in their
obligations to purchase Securities hereunder on the Closing Date and the
aggregate principal amount at maturity of Securities that such defaulting
Purchaser or Purchasers agreed but failed to purchase does not exceed 10% of the
total principal amount Securities that the Purchasers are obligated to purchase
on the Closing Date, the Representatives may make arrangements satisfactory to
the Company for the purchase of such Securities by other persons, including any
of the Purchasers, but if no such arrangements are made by the Closing Date, the
non-defaulting Purchasers shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Securities that such
defaulting Purchasers agreed but failed to purchase on the Closing Date. If any
Purchaser or Purchasers so default and the aggregate principal amount at
maturity of Securities with respect to which such default or defaults occur
exceeds 10% of the total principal amount of Securities that the Purchasers are
obligated to purchase on the Closing Date and arrangements satisfactory to the
Representatives and the Company for the purchase of such Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Purchaser or the
Company, except as provided in Section 9. As used in this Agreement, the term
"Purchaser" includes any person substituted for a Purchaser under this Section.
Nothing herein will relieve a defaulting Purchaser from liability for its
default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company and the Guarantors or their officers and of the several Purchasers set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Purchaser, the Company, the Guarantors or any of
their respective representatives, officers or directors or any controlling
17
person, and will survive delivery of and payment for the Securities. If this
Agreement is terminated pursuant to Section 8 or if for any reason the purchase
of the Securities by the Purchasers is not consummated, the Company and the
Guarantors shall remain responsible for the expenses to be paid or reimbursed by
it pursuant to Section 5 and the respective obligations of the Company, the
Guarantors and the Purchasers pursuant to Section 7 shall remain in effect and
if any Securities have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Securities by the Purchasers is not consummated
for any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in clause (iii),
(iv), (v), (vi) or (vii) of Section 6(b), the Company and the Guarantors will
reimburse the Purchasers for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Purchasers, will be mailed, delivered or telegraphed and confirmed to the
Purchasers, c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: High Grade Syndicate Desk and ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated, World Financial Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇, with a copy, which shall not constitute notice of
the Purchasers, to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, or, if sent to the Company or the
Guarantors, will be mailed, delivered or telegraphed and confirmed to it at ▇▇▇▇
Corporation, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇, with a copy, which shall not constitute notice to the Company or the
Guarantors, to Winston & ▇▇▇▇▇▇ LLP, ▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇; provided, however, that any notice to a Purchaser
pursuant to Section 7 will be mailed, delivered or telegraphed and confirmed to
such Purchaser.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the controlling
persons referred to in Section 7, and no other person will have any right or
obligation hereunder, except that holders of Securities shall be entitled to
enforce the agreements for their benefit contained in the second and third
sentences of Section 5(b) hereof against the Company as if such holders were
parties thereto.
12. Representation of Purchasers. ▇.▇. ▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇▇
Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, as Representatives, will act for the
several Purchasers in connection with this purchase, and any action under this
Agreement taken by you will be binding upon all the Purchasers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. The Company and each of the
Guarantors hereby submits to the non-exclusive jurisdiction of the Federal and
state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
18
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement among the Company, the Guarantors
and the several Purchasers in accordance with its terms.
Very truly yours,
▇▇▇▇ CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title Senior Vice President and
Chief Financial Officer
LEAR OPERATIONS CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title Vice President
▇▇▇▇ SEATING HOLDINGS CORP. #50
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title Vice President and Treasurer
▇▇▇▇ CORPORATION ▇▇▇▇ AND INTERIORS
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title Vice President and
Chief Financial Officer
LEAR TECHNOLOGIES, LLC
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title Senior Vice President and
Chief Financial Officer of ▇▇▇▇
Corporation, its Sole Member
LEAR MIDWEST AUTOMOTIVE, LIMITED
PARTNERSHIP
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title Vice President and Treasurer of
▇▇▇▇ Corporation Mendon,
its General Partner
▇▇▇▇ AUTOMOTIVE (▇▇▇▇) SPAIN S.L.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title By Power of Attorney
▇▇▇▇ CORPORATION MEXICO, S.A. DE C.V.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title By Power of Attorney
19
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Title Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Title Managing Director
Acting on behalf of itself
and as the Representatives
of the several Purchasers
20
SCHEDULE A
PRINCIPAL AMOUNT OF
PURCHASER NOTES
--------- -----
▇.▇. ▇▇▇▇▇▇ Securities Inc....................................... $ 140,000,000
▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated............... 140,000,000
Banc of America Securities LLC................................... 40,000,000
Deutsche Bank Securities Inc..................................... 40,000,000
ABN AMRO Incorporated............................................ 11,428,000
BNP Paribas Securities Corp...................................... 11,428,000
Calyon Securities (USA) Inc...................................... 11,432,000
Mizuho International plc......................................... 11,428,000
Scotia Capital (USA) Inc......................................... 11,428,000
SunTrust Capital Markets, Inc.................................... 11,428,000
Wachovia Capital Markets, LLC.................................... 11,428,000
-------------
Total.................................. $ 400,000,000
=============
21
SCHEDULE B
Guarantors
Name Jurisdiction of Organization
---- ----------------------------
▇▇▇▇ Operations Corporation Delaware
▇▇▇▇ Seating Holdings Corp. #50 Delaware
▇▇▇▇ Corporation ▇▇▇▇ and Interiors Delaware
Lear Technologies, LLC Delaware
Lear Midwest Automotive, Limited Partnership Delaware
▇▇▇▇ Automotive (▇▇▇▇) Spain S.L. Spain
▇▇▇▇ Corporation Mexico, S.A. de C.V. Mexico
22