$25,000,000
HARVARD INDUSTRIES, INC.
14 1/2% Senior Secured Notes due 2003
AMENDED AND RESTATED PURCHASE AGREEMENT
November 23, 1998
▇▇▇▇▇▇ BROTHERS INC.
Three World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Harvard Industries, Inc., a Florida corporation (the "Company"),
proposes to issue and sell to you (the "Initial Purchaser") $25.0 million in
gross proceeds of its 14 1/2% Senior Secured Notes due 2003 (the "Initial
Notes") to be issued pursuant to the terms of an Indenture (the "Indenture")
among the Company, the Company's domestic subsidiaries set forth on Schedule I
attached hereto (the "Domestic Subsidiaries"), and Wilmington Trust Company, as
trustee (the "Trustee"), relating to the Initial Notes. The Initial Purchaser
proposes to purchase all of the Initial Notes. Payment of principal of,
premium, liquidated damages, if any, and interest on the Initial Notes (as
defined herein) will be unconditionally guaranteed, jointly and severally and
on a senior basis (the "Initial Guarantees," together with the Notes, the
"Initial Securities"), by the Domestic Subsidiaries (as guarantors, the
"Subsidiary Guarantors") and any newly acquired or created domestic subsidiary.
This Amended and Restated Purchase Agreement (the "Agreement") amends and
restates in its entirety the Purchase Agreement (the "Purchase Agreement")
dated October 27, 1998 by and between the parties hereto.
The Initial Securities will be offered and sold to you pursuant to an
exemption from the registration requirements under the Securities Act of 1933,
as amended (the "Securities Act"). The Company has prepared an offering
memorandum dated November 23, 1998 (the "Offering Memorandum") relating to the
Company and the Initial Securities.
Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Securities Act, the
Initial Notes (and all securities issued in exchange therefor or in
substitution thereof) shall bear the following legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ SECURITIES ACT OF 1933, AS AMENDED
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(THE "SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF
THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISION OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (1) (a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 UNDER THE
SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR
(3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE,
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS
SET FORTH IN (A) ABOVE."
You have advised the Company that you will make offers (the "Exempt
Resales") of the Initial Notes purchased by you hereunder on the terms set
forth in the Offering Memorandum as amended or supplemented solely to persons
whom you reasonably believe to be "qualified institutional buyers", as defined
in Rule 144A under the Securities Act ("QIBs") (such persons being referred to
herein as the "Eligible Purchasers"). You will offer the Initial Notes to
Eligible Purchasers initially at a price equal to 100% of the principal amount
thereof. Such price may be changed at any time without notice.
Holders (including subsequent transferees) of the Initial Securities
will have the registration rights set forth in the registration rights
agreement (the "Registration Rights Agreement"), to be dated the date of the
closing of the offering of the Notes (the "Closing Date"),
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substantially in the form of Exhibit A hereto, for so long as such Initial
Securities constitute "Transfer Restricted Securities" (as defined in the
Registration Rights Agreement). Pursuant to the Registration Rights Agreement,
the Company will agree to file with the Securities and Exchange Commission (the
"Commission") under the circumstances set forth therein, (i) a registration
statement under the Securities Act (the "Exchange Offer Registration
Statement") relating to the Company's 14 1/2% New Senior Secured Notes due 2003
(the "New Notes" and, together with the Initial Notes, the "Notes") to be
offered in exchange for the Initial Notes (such offer to exchange being
referred to collectively as the "Exchange Offer") and the unconditional joint
and several guarantee of such New Notes on a senior basis (the "New
Guarantees"; together with the Initial Guarantees, the "Guarantees"; and
together with the New Notes, the "New Securities" ) and (ii) 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") relating to the resale
of the Initial Securities by certain holders of such Notes, and to use their
best efforts to cause such Registration Statements to be declared effective.
In conjunction with the transactions described herein, the Company
will syndicate and close a $115.0 million senior secured credit facility (the
"Senior Credit Facility") among the Company, ▇▇▇▇▇▇ Brothers Inc., as Arranger,
▇▇▇▇▇▇ Commercial Paper Inc. ("LCPI") as Syndication Agent, General Electric
Capital Corporation, as Administrative Agent (the "Administrative Agent") and
as Collateral Agent (the "Loan Collateral Agent"), and other financial
institutions which are parties thereto. As described in the Offering
Memorandum, the proceeds of the offering of the Notes and borrowings under the
Senior Credit Facility will be used (a) to refinance, in part, indebtedness and
other obligations of the Company under the Company's existing $175.0 million
senior secured debtor-in-possession credit facility, (b) to refinance, in part,
indebtedness and other obligations of the Company under the Company's existing
$25.0 million junior secured debtor-in-possession credit facility (together
with the $175.0 million facility, the "DIP Credit Facilities"), (c) to pay
administrative expenses due under the Company's plan of reorganization dated
August 19, 1998 (the "Plan of Reorganization") as confirmed by the United
States Bankruptcy Court for the District of Delaware (the "Bankruptcy Court")
and to pay related fees and expenses, (d) to finance the working capital
purposes and (e) to provide funds for general corporate purposes. Concurrently
with the execution and delivery of the Indenture and the Senior Credit
Facility, the Company, the Subsidiary Guarantors, the Trustee, Wilmington Trust
Company, as collateral agent (the "Collateral Agent"), and LCPI will enter into
a Collateral Agreement (the "Collateral Agreement"), to be dated as of the
Closing Date, granting to the Collateral Agent, for the benefit of holders of
the Notes, a second priority security interest in the Collateral (as defined
herein). Furthermore, the Company, the Trustee, the Administrative Agent and
the Collateral Agent will enter into an Intercreditor Agreement (the
"Intercreditor Agreement") to be dated as of the Closing Date that will set
forth their relative rights in respect of the shared Collateral and the
security interests granted therein.
This Agreement, the Indenture, the Registration Rights Agreement, the
Collateral Agreement, the Mortgages (as defined herein) and the Intercreditor
Agreement and the other documents related thereto are hereinafter referred to
collectively as the "Operative Documents."
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1 Representations and Warranties of the Company and the Subsidiary
Guarantors. Except as disclosed in documents filed by the Company on or after
January 1, 1998 (the "1998 Exchange Act Documents") with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the disclosure statement filed with the Bankruptcy Court in
connection with the Plan of Reorganization on August 19, 1998 (the "Disclosure
Statement"), each of which are incorporated by reference or included in the
Offering Memorandum, the Company and the Subsidiary Guarantors represent and
warrant as follows:
(a) The Offering Memorandum has been prepared by the Company for use
by the Initial Purchaser in connection with the Exempt Resales. No order or
decree preventing the use of the Offering Memorandum, or any order asserting
that the transactions contemplated by this Agreement are subject to the
registration requirements of the Securities Act, has been issued and no
proceeding for that purpose has commenced or is pending or, to the knowledge of
the Company, is contemplated.
(b) No statement or information contained in the Offering Memorandum,
this Agreement, any other Operative Document, the Senior Credit Facility, the
Plan of Reorganization and the Disclosure Statement related thereto, or any
other document, certificate or written statement furnished to you, by or on
behalf of the Company for use in connection with the transactions contemplated
by the Offering Memorandum and this Agreement or the other Operative Documents,
contained as of the date such statement, information, document or certificate
was so furnished (or, in the case of the Offering Memorandum, as of its date
and as of the Closing Date), any untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements contained
herein or therein not misleading. The projections and pro forma financial
information contained in the materials referenced above, as applicable, are
based upon good faith estimates and assumptions believed by management of the
Company to be reasonable at the time made, it being recognized by the Initial
Purchaser that such financial information as it relates to future events is not
to be viewed as fact and that actual results during the period or periods
covered by such financial information may differ from the projected results set
forth therein by a material amount. There is no fact known to the Company that
could reasonably be expected to have a material adverse effect on the business,
assets, property or condition (financial or otherwise) of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect") that has not been
expressly disclosed herein, in the other Operative Documents, in the Offering
Memorandum or in any other documents, certificates and statements furnished to
you for use in connection with the transactions contemplated hereby and by the
Senior Credit Facility.
(c) No consent or authorization of, approval by, filing with, notice
to or other act by or in respect of, any governmental authority or any other
person is required in connection with the issuance and sale of the Securities
hereunder, or with the execution, delivery, performance, validity or
enforceability of the Operative Documents except (i) as may be required by the
securities or "blue sky" laws of any state of the United States in connection
with the sale of the Initial Notes and the New Notes, (ii) as contemplated by
the Registration Rights Agreement, (iii) for filings, registrations,
recordations in all necessary and appropriate jurisdictions to perfect the
security interests in the Collateral as contemplated by the Collateral
Agreement and (iv) the final order of the Bankruptcy Court of the Plan of
Reorganization, in
5
accordance with Section 1129 of the Bankruptcy Reform Act of 1978, as amended
and codified as 11 U.S.C. ss.ss.101 et seq. (the "Bankruptcy Code").
(d) Each of the Company and its subsidiaries (i) is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (ii) has the corporate power and authority, and the legal right,
to own and operate its properties, to lease the properties it operates as
lessee and to conduct the business in which it is currently engaged, (iii) is
duly qualified as a foreign corporation and in good standing under the laws of
each jurisdiction where its ownership, lease or operation of its properties or
the conduct of its business requires such qualification and (iv) is in
compliance with its certificate of incorporation and by-laws or other
organizational or governing documents and any law, treaty, rule or regulation
or determination of an arbiter or a court or other governmental authority
applicable to it or binding upon it or any of its property or to which it or
any of its property is subject, except to the extent that the failure to comply
therewith could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(e) Each of the Company and the Subsidiary Guarantors has all
requisite power and authority to execute, deliver and perform its obligations
under this Agreement, the Plan of Reorganization and the other Operative
Documents and to authorize, issue and sell the Securities as contemplated by
this Agreement.
(f) The Purchase Agreement has been duly and validly authorized,
executed and delivered by the Company and each of the Subsidiary Guarantors,
and assuming due authorization, execution and delivery by the Initial
Purchaser, prior to its amendment herein and restatement hereby, heretofore
constituted the valid and binding agreement of the Company and each of the
Subsidiary Guarantors, enforceable against them in accordance with its terms
(subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights
generally from time to time in effect and to general principles of equity,
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing, regardless of whether in a proceeding in equity or at
law).
(g) The Registration Rights Agreement has been duly and validly
authorized by the Company and each of the Subsidiary Guarantors and, upon its
execution and delivery by the Company and each of the Subsidiary Guarantors
and, assuming due authorization, execution and delivery by the Initial
Purchaser, will constitute the valid and binding agreement of the Company and
each of the Subsidiary Guarantors, enforceable against them in accordance with
its terms (subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether in a proceeding in equity or
at law).
(h) The Indenture has been duly and validly authorized by the Company
and each of the Subsidiary Guarantors, and upon its execution and delivery by
the Company and each of the Subsidiary Guarantors and, assuming due
authorization, execution and delivery by the Trustee, will constitute the valid
and binding agreement of the Company and each of the Subsidiary Guarantors,
enforceable against them in accordance with its terms (subject to
6
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights generally from time
to time in effect and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether in a proceeding in equity or at law); no
qualification of the Indenture under the Trust Indenture Act of 1939, as
amended ("TIA"), is required in connection with the offer and sale of the
Initial Securities contemplated hereby or in connection with the Exempt
Resales.
(i) Each of the Guarantees has been duly and validly authorized,
executed and issued by the applicable Subsidiary Guarantor and, assuming due
authentication of the Notes by the Trustee and upon payment for and delivery of
the Notes to the Initial Purchaser in accordance with the terms of this
Agreement, will constitute the valid and binding guarantee of that Subsidiary
Guarantor, enforceable against that Subsidiary Guarantor in accordance with its
terms (subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether in a proceeding in equity or
at law).
(j) The Collateral Agreement and all other security documents
(including the Mortgages) delivered after the Closing Date to the Collateral
Agent granting a lien on any property or person to secure the obligations and
liabilities of the Company and the Subsidiary Guarantors (the "Security
Documents"), have been duly and validly authorized, executed and delivered by
each of the Company and the Subsidiary Guarantors and, assuming due
authorization, execution and delivery by the Collateral Agent, will constitute
the valid and binding agreement of each of the Company and the Subsidiary
Guarantors, enforceable against them in accordance with their terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights generally from time
to time in effect and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether in a proceeding in equity or at law).
(k) The Initial Notes have been duly and validly authorized by the
Company and when duly executed by the Company in accordance with the terms of
the Indenture and, assuming due authentication of the Initial Notes by the
Trustee, upon delivery to the Initial Purchaser against payment therefor in
accordance with the terms hereof, will have been validly issued and delivered,
and will constitute valid and binding obligations of the Company entitled to
the benefits of the Indenture, enforceable against the Company in accordance
with their terms (subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether in a proceeding in equity or
at law).
(l) The New Notes have been duly and validly authorized by the Company
and if and when duly issued and authenticated in accordance with the terms of
the Indenture and,
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assuming due authentication of the New Notes by the Trustee, upon delivery in
accordance with the Exchange Offer provided for in the Registration Rights
Agreement, will constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture, enforceable against the Company in
accordance with their terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws
affecting creditors' rights generally from time to time in effect and to
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of whether
in a proceeding in equity or at law).
(m) The Senior Credit Facility has been duly and validly authorized by
the Company and each of the Subsidiary Guarantors, and upon its execution and
delivery by the Company and each of the Subsidiary Guarantors and, assuming due
authorization, execution and delivery by the lenders parties thereto, the
Arranger, the Syndication Agent and the Administrative Agent, will constitute
the valid and binding agreement of the Company and each of the Subsidiary
Guarantors, enforceable against them in accordance with its terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights generally from time
to time in effect and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether in a proceeding in equity or law).
(n) The Intercreditor Agreement has been duly and validly authorized
by the Company, and upon its execution and delivery by the Company and,
assuming due authorization, execution and delivery by the other parties
thereto, will constitute the valid and binding agreement of the Company,
enforceable against it in accordance with its terms (subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights generally from time to time in
effect and to general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing,
regardless of whether in a proceeding in equity or law).
(o) This Agreement has been duly and validly authorized, executed and
delivered by each of the Company and the Subsidiary Guarantors and, assuming
due authorization, execution and delivery by the Initial Purchaser, will
constitute the valid and binding agreement of each of the Company and the
Subsidiary Guarantors, enforceable against them in accordance with its terms
(subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights
generally from time to time in effect and to general principles of equity,
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing, regardless of whether in a proceeding in equity or at
law).
(p) (i) All the shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable and (ii) all
the outstanding shares of capital stock of the Subsidiary Guarantors have been
duly authorized and validly issued, are fully paid and nonassessable, and are
wholly owned by the Company directly, or indirectly through one of the other
subsidiaries, free and clear of any lien, adverse claim, security interest,
equity or other encumbrance, other than liens that will be granted in favor of
the
8
Collateral Agent under the Collateral Agreement and, without duplication, as
permitted under the covenant entitled "Liens" in the Indenture.
(q) The subsidiaries listed on Schedule II hereto, as of the date
hereof, constitute all the subsidiaries of the Company at the date hereof,
Schedule II sets forth as of the Closing Date the name and jurisdiction of
incorporation of each subsidiary and, as to each such subsidiary, the
percentage of each class of capital stock owned by the Company or any of its
subsidiaries.
(r) There are no outstanding subscriptions, options, warrants, calls,
rights or other agreements or commitments (other than stock options granted to
employees or directors and directors' qualifying shares) of any nature relating
to any capital stock of the Company or any subsidiary.
(s) No litigation, investigation or proceeding of or before any
arbitrator or governmental authority is pending or, to the knowledge of the
Company, threatened by or against the Company or any of its subsidiaries or
against any of their respective properties or revenues (a) with respect to any
of the Operative Documents or the Senior Credit Facility or any of the
transactions contemplated hereby or thereby, or (b) which could reasonably be
expected to have a Material Adverse Effect.
(t) The execution, delivery and performance of this Agreement, the
Senior Credit Facility and the other Operative Documents and the issuance of
the Securities and the consummation of the transactions contemplated hereby and
thereby will not conflict with, or result in a breach or violation of any of
the terms or provisions of, or (including with the giving of notice or the
lapse of time or both) constitute a default under (i) any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the properties or assets of the
Company or any of its subsidiaries is subject, (ii) the provisions of the
charter, by-laws or other organizational documents of the Company or any of its
subsidiaries or (iii) any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties or assets, except in the cases of
clause (i) or (iii), such breaches, violations or defaults that in the
aggregate would not have a Material Adverse Effect.
(u) Neither the Company nor any of its subsidiaries will be, upon
consummation of the Plan of Reorganization, in default under or with respect to
any provision of any security issued by it or of any agreement, instrument or
other undertaking to which it is a party or by which it or any of its property
is bound in any respect which could reasonably be expected to have a Material
Adverse Effect.
(v) The accountants, PricewaterhouseCoopers LLP, who have certified
the financial statements contained in the 1998 Exchange Act Documents, are
independent public accountants under Rule 101 of the Code of Professional
Conduct of the American Institute of Certified Public Accountants (the
"AICPA"), and its interpretation and rulings.
9
(w) The unaudited pro forma consolidated balance sheet of the Company
and its consolidated subsidiaries as at September 30, 1998 (including the notes
thereto) (the "Pro Forma Balance Sheet"), copies of which have heretofore been
furnished to the Initial Purchaser, has been prepared giving effect (as if such
events had occurred on such date) to (i) the consummation of the Plan of
Reorganization, (ii) the offering of the Notes contemplated hereby and the use
of proceeds thereof, (iii) the loans to be made on the Closing Date pursuant to
the Senior Credit Facility and the use of proceeds thereof and (iv) the payment
of fees and expenses in connection with consummation of the foregoing. The Pro
Forma Balance Sheet has been prepared based on the best information available
to the Company as of the date of delivery thereof, and presents fairly on a pro
forma basis the estimated financial position of the Company and its
consolidated subsidiaries as at September 30, 1998, assuming that the events
specified in the preceding sentence had actually occurred at such date.
(x) The audited consolidated balance sheets of the Company and its
subsidiaries as at September 30, 1996, September 30, 1997 and the related
consolidated statements of income and of cash flows for the fiscal years ended
on such dates, reported on by and accompanied by an unqualified report from
PricewaterhouseCoopers LLP, present fairly the consolidated financial condition
of the Company and its consolidated subsidiaries as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
respective fiscal years then ended. The unaudited consolidated balance sheet of
the Company and its subsidiaries as at June 30, 1998, and the related unaudited
consolidated statements of income and cash flows for the nine-month period
ended on such date, present fairly the consolidated financial condition of the
Company and its consolidated subsidiaries as at such date, and the consolidated
results of its operations and its consolidated cash flows for the nine-month
period then ended (subject to normal year-end audit adjustments). All such
financial statements, including the related schedules and notes thereto, have
been prepared in accordance with generally accepted accounting principles in
the United States of America ("GAAP") applied consistently throughout the
periods involved (except as approved by the aforementioned firm of accountants
and disclosed therein). The Company and its subsidiaries do not have any
material Guarantee Obligations (as defined in the Senior Credit Facility),
contingent liabilities and liabilities for taxes, or any long-term leases or
unusual forward or long-term commitments, including, without limitation, any
interest rate or foreign currency swap or exchange transaction or other
obligation in respect of derivatives, which are not reflected in the most
recent financial statements, including any notes thereto, referred to in this
paragraph. During the period from September 30, 1997 to and including the date
hereof, there has been no disposition with respect to any property, any sale,
lease, sale and leaseback, assignment, conveyance, transfer or other
disposition thereof (excluding the net cash proceeds of any settlement of or
payment in respect of any property, insurance claim or casualty insurance claim
or any condemnation proceeding relating to any asset of the Company or any of
its subsidiaries) by the Company or its subsidiaries of any material part of
their business or property.
(y) Since September 30, 1997, there has been no development or event
which has had or could reasonably be expected to have a Material Adverse
Effect, other than the pendency of the Company and its subsidiaries' bankruptcy
case voluntarily commenced under Chapter 11 of the Bankruptcy Code in the
Bankruptcy Court (the "Cases").
10
(z) The Company and its subsidiaries (i) make and keep accurate books
and records and (ii) maintain internal accounting controls which provide
reasonable assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain accountability
for its assets, (C) access to its books, records and accounts is permitted only
in accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets at reasonable
intervals.
(aa) The Company and each of its subsidiaries has good and marketable
title in fee simple to or a valid leasehold interest in, all its real property
and good title to, or a valid leasehold interest in, all personal property
owned by it (whether tangible or intangible), in each case free and clear of
all liens, encumbrances and defects except (i) such as do not materially affect
the value of such property and do not materially interfere with the use made
and proposed to be made of such property by the Company and its subsidiaries or
(ii) liens in favor of the Collateral Agent under the Collateral Agreement and,
without duplication, as permitted under the covenant entitled "Liens" in the
Indenture.
(bb) The Company and each of its subsidiaries owns or is licensed to
use, all material patents, patent applications, trademarks, service marks,
trade names, trademark registrations, service ▇▇▇▇ registrations, copyrights
and licenses and franchises ("Intellectual Property") necessary for the conduct
of their respective businesses as currently conducted. No material claim has
been asserted and is pending by any person challenging or questioning the use
of any Intellectual Property or the validity or effectiveness of any
Intellectual Property, nor does the Company know of any valid basis for any
such claim. To the best of the Company's knowledge, the use of Intellectual
Property by the Company and its subsidiaries does not infringe on the rights of
any person in any material respect.
(cc) Each of the Company and its subsidiaries possesses such
certificates, authorizations or permits ("Permits") issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary to conduct
the business now operated by them, except where the failure to possess such
certificates, authorizations or permits would not have a Material Adverse
Effect and except with respect to such Permits relating to the Tiffin, Ohio
facility of ▇▇▇▇▇- Albion Corporation, one of the Domestic Subsidiaries; and
none of the Company or any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling, or finding, would have a Material Adverse Effect.
(dd) There are no strikes or other labor disputes against the Company
or any of its subsidiaries pending or, to the knowledge of the Company,
threatened that (individually or in the aggregate) could reasonably be expected
to have a Material Adverse Effect. Hours worked by and payment made to
employees of the Company and its subsidiaries have not been in violation of the
Fair Labor Standards Act or any other applicable law dealing with such matters
that (individually or in the aggregate) could reasonably be expected
11
to have a Material Adverse Effect. All payments due from the Company or any of
its subsidiaries on account of employee health and welfare insurance that
(individually or in the aggregate) could reasonably be expected to have a
Material Adverse Effect if not paid have been paid or accrued as a liability on
the books of the Company or the relevant subsidiary.
(ee) None of the Company or any subsidiary has violated any safety or
similar law applicable to its business nor any federal, state or local law
relating to discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws which in each case could
reasonably be expected to result in a Material Adverse Effect, other than the
claim filed with the U.S. Department of Labor as described in the Letter dated
October 1, 1998 from ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, District Director, Nashville District
Office of the U.S. Department of Labor, to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Plant Manager of
the Company.
(ff) Neither the Company nor any of its subsidiaries nor any director,
officer, agent, employee or other person associated with or acting on behalf of
the Company or any of its subsidiaries, have used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating
to political activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds;
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
(gg) Neither the Company nor any of its subsidiaries are currently or
will be, upon sale of the Initial Securities in accordance herewith and the
application of the net proceeds therefrom, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(hh) Neither the Company nor any affiliate (as defined in Rule 501(b)
of Regulation D ("Regulation D") under the Securities Act) of the Company has
directly, or through any agent (provided that no representation is made as to
the Initial Purchaser or any person acting on its behalf), (i) sold, offered
for sale, solicited offers to buy or otherwise negotiated in respect of, any
security (as defined in the Securities Act) which is or could be integrated
with the offering and sale of the Securities in a manner that would require the
registration of the Initial Securities under the Securities Act or (ii) engaged
in any form of general solicitation or general advertising (within the meaning
of Regulation D, including, but not limited to, advertisements, articles,
notices or other communications published in any newspaper, magazine, or
similar medium or broadcast over television or radio, or any seminar or meeting
whose attendees have been invited by any general solicitation or general
advertising) in connection with the offering of the Initial Securities. No
securities of the same class as the Initial Notes have been issued and sold by
the Company within the six-month period immediately prior to the date hereof.
(ii) Except as permitted by the Securities Act, the Company has not
distributed and, prior to the later to occur of the Closing Date and completion
of the distribution of the Initial Securities, will not distribute any offering
material in connection with the offering and sale of the Initial Securities
other than the Offering Memorandum.
(jj) When the Initial Securities are issued and delivered pursuant to
this Agreement, such Initial Securities will not be of the same class (within
the meaning of Rule 144A under the Securities Act) as securities of the Company
that are listed on a national
12
securities exchange registered under Section 6 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") or that are quoted in a United States
automated inter-dealer quotation system.
(kk) Assuming (i) that your representations and warranties in Section
2 are true, (ii) compliance by you with your covenants set forth in Section 2
and (iii) that each of the Eligible Purchasers is an entity that you reasonably
believe to be a QIB, the purchase of the Initial Securities by you pursuant
hereto and the resale of the Initial Securities pursuant to the Exempt Resales
will be exempt from the registration requirements of the Securities Act.
(ll) Except for the commencement of the Cases and except as disclosed
on Schedule 1(ll) hereto Agreement, neither a "reportable event" nor an
"accumulated funding deficiency" (within the meaning of Section 412 of the
Internal Revenue Code of 1986, as amended (the "Code") or Section 302 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA")), has occurred
during the five-year period prior to the date on which this representation is
made or deemed made with respect to any Plan (as defined in ERISA), and each
Plan has complied in all material respects with the applicable provisions of
ERISA and the Code. No termination of a "Single Employer Plan" (as defined in
ERISA) has occurred, and no lien in favor of the Pension Benefit Guaranty
Corporation established pursuant to Subtitle A of Title IV or ERISA (or any
successor) or a Plan has arisen, during such five-year period. Except as
disclosed on Schedule 1(ll) hereto Agreement, the present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to
fund such Plans) did not, as of the last annual valuation date prior to the
date on which this representation is made or deemed made, exceed the value of
the assets of such Plan allocable to such accrued benefits by a material
amount. Neither the Company nor any Commonly Controlled Entity (as defined in
ERISA) has had a complete or partial withdrawal from any Multiemployer Plan (as
defined in ERISA) which has resulted or could reasonably be expected to result
in a material liability under ERISA, and neither the Company nor any Commonly
Controlled Entity would become subject to any material liability under ERISA if
the Company or any such Commonly Controlled Entity were to withdraw completely
from all Multiemployer Plans as of the valuation date most closely preceding
the date on which this representation is made or deemed made. No such
Multiemployer Plan is in "reorganization" or "insolvent" (as defined under
ERISA).
(mm) There are no contracts, agreements or understandings between the
Company or any of its subsidiaries and any person granting such person the
right to require the Company or any of its subsidiaries to file a registration
statement under the Securities Act with respect to any securities of the
Company and its subsidiaries owned or to be owned by such person or to require
the Company or any of its subsidiaries to include such securities in the
securities registered pursuant to the Registration Statements or in any
securities being registered pursuant to any other registration statement filed
by the Company or any of its subsidiaries under the Securities Act.
(nn) Each of the Company and its subsidiaries carries, or is covered
by, insurance in such amounts and covering such risks as is adequate for the
conduct of their
13
respective businesses and the value of their properties and as is customary for
companies engaged in similar businesses in similar industries.
(oo) The Company and each of its subsidiaries has filed or caused to
be filed all Federal, state and other material tax returns which are required
to be filed and has paid all taxes shown to be due and payable on said returns
or on any assessments made against it or any of its property and all other
taxes, fees or other charges imposed on it or any of its property by any
governmental authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Company or its subsidiaries, as the case may be); no tax lien has
been filed which is not being treated under the Plan of Reorganization, and, to
the knowledge of the Company, no claim is being asserted, with respect to any
such tax, fee or other charge.
(pp) Except as may otherwise be disclosed in the Offering Memorandum,
the Company and its subsidiaries have not (i) issued or granted any securities,
other than shares issued pursuant to employee benefit plans, qualified stock
options plans or other employee compensation plans or pursuant to outstanding
options, rights or warrants, (ii) incurred any liability or obligation, direct
or contingent, other than liabilities and obligations which were incurred in
the ordinary course of business, (iii) entered into any transaction not in the
ordinary course of business or (iv) declared or paid any dividend on its
capital stock.
(qq) Other than exceptions to any of the following that could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect:
(i) the Company and its subsidiaries: (A) are, and within
the period of all applicable statutes of limitation have been, in
compliance with all applicable environmental laws; (B) hold all
environmental permits (each of which is in full force and effect)
required for any of their current or intended operations or for any
property owned, leased, or otherwise operated by any of them; (C) are,
and within the period of all applicable statutes of limitation have
been, in compliance with all of their environmental permits; and (D)
reasonably believe that: each of their environmental permits will be
timely renewed and complied with, without material expense; any
additional environmental permits that may be required of any of them
will be timely obtained and complied with, without material expense;
and compliance with any environmental law that is or is expected to
become applicable to any of them will be timely attained and
maintained, without material expense.
(i) materials of environmental concern are not present at,
on, under, in, or about any real property now or formerly owned,
leased or operated by the Company or any of its subsidiaries, or at
any other location (including, without limitation, any location to
which materials of environmental concern have been sent for re-use or
recycling or for treatment, storage, or disposal) which could
reasonably be expected to (i) give rise to liability of the Company or
any of its subsidiaries under any applicable environmental law or
otherwise result in costs to the Company or any of its subsidiaries,
or (ii) interfere with the Company's or any of its subsidiaries'
continued operations, or
15
(iii) impair the fair saleable value of any real property owned or
leased by the Company or any of its subsidiaries.
(iii) there is no judicial, administrative, or arbitral
proceeding (including any notice of violation or alleged violation)
under or relating to any environmental law to which the Company or any
of its subsidiaries is, or to the knowledge of the Company or any of
its subsidiaries will be, named as a party that is pending or, to the
knowledge of the Company or any of its subsidiaries, threatened.
(iv) neither the Company nor any of its subsidiaries has
received any written request for information, or been notified that it
is a potentially responsible party under or relating to the federal
Comprehensive Environmental Response, Compensation, and Liability Act
or any similar environmental law, or with respect to any materials of
environmental concern.
(v) neither the Company nor any of its subsidiaries has
entered into or agreed to any consent decree, order, or settlement or
other agreement, or is subject to any judgment, decree, or order or
other agreement, in any judicial, administrative, arbitral, or other
forum for dispute resolution, relating to compliance with or liability
under any environmental law.
(vi) neither the Company nor any of its subsidiaries has
assumed or retained, by contract or operation of law, any liabilities
of any kind, fixed or contingent, known or unknown, under any
environmental law or with respect to any material of environmental
concern. The term "material of environmental concern" shall have the
meaning specified in any applicable local, state, federal or foreign
laws and regulations with respect to environmental protection.
(rr) The Company is not required to deliver the information specified
in Rule 144A(d)(4) in connection with the Exempt Resales.
(ss) Neither the Company nor any of its subsidiaries has taken or may
take, directly or indirectly, any action designed to cause or result in, or
which has constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Securities to facilitate the
sale or resale of the Securities.
(tt) After giving effect to consummation of the Plan of
Reorganization, the transactions contemplated hereby and the Senior
Credit Facility, the Company and its subsidiaries, taken as a whole,
will be Solvent. "Solvent" for purposes of this Agreement and when
used with respect to any person, means that, as of any date of
determination, (i) the amount of the "present fair saleable value" of
the assets of such person will, as of such date, exceed the amount of
all "liabilities of such person, contingent or otherwise", as of such
date, as such quoted terms are determined in accordance with
applicable federal and state laws governing determinations of the
insolvency of debtors, (ii) the present fair saleable value of the
assets of such person will, as of such date, be greater than the
amount that will be required to pay the liability of such person on
its debts as such debts become absolute and matured, (iii) such person
15
will not have, as of such date, an unreasonably small amount of
capital with which to conduct its business, and (iv) such person will
be able to pay its debts as they mature. For purposes of this
subsection, (A) "debt" means liability on a "claim", and (B) "claim"
means any (X) right to payment, whether or not such a right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or
unsecured or (Y) right to an equitable remedy for breach of
performance if such breach gives rise to a right to payment, whether
or not such right to an equitable remedy is reduced to judgment,
fixed, contingent, matured or unmatured, disputed, undisputed, secured
or unsecured.
(uu) As described in the Offering Memorandum, the proceeds of the
transactions described herein and the Senior Credit Facility shall be used to
(i) refinance the DIP Credit Facilities, (ii) pay administrative expenses due
under the Plan of Reorganization and pay related fees and expenses, (iii)
provide cash for working capital purposes and (iv) to provide funds for general
corporate purposes.
(vv) No mortgage encumbers improved real property which is located in
an area that has been identified by the Secretary of Housing and Urban
Development as an area having special flood hazards and in which flood
insurance has not been made available under the National Flood Insurance Act of
1968, except as would not have a Material Adverse Effect.
(ww) Any reprogramming required to permit the proper functioning, in
and following the year 2000, of (i) the Company's computer systems and (ii)
equipment containing embedded microchips (including systems and equipment
supplied by others or with which Company's systems interface) and the testing
of all such systems and equipment, as so reprogrammed, will be completed, in
all material respects, by September 30, 1999. The cost to the Company of such
reprogramming and testing and of the reasonably foreseeable consequences of
year 2000 to the Company (including, without limitation, reprogramming errors
and the failure of others' systems or equipment) will not result in a Material
Adverse Effect. Except for such of the reprogramming referred to in the
preceding sentence as may be necessary, the computer and management information
systems of the Company and its subsidiaries are and, with ordinary course
upgrading and maintenance, will continue for the term of this Agreement to be,
sufficient to permit the Company to conduct its business without Material
Adverse Effect.
(xx) (i) The Collateral Agreement will be effective to create in favor
of the Collateral Agent, for the benefit of the Initial Purchaser and Eligible
Purchasers, a legal, valid and enforceable security interest in the collateral
described therein and proceeds thereof (collectively, the "Collateral"). In the
case of the pledged stock described in the Collateral Agreement, when any stock
certificates representing such pledged stock are delivered to the Collateral
Agent, and, in the case of the other collateral described in the Collateral
Agreement, when financing statements in appropriate form are filed in the
offices specified therein (which financing statements have been duly completed
and executed and delivered to the Collateral Agent) and such other filings as
are specified on Schedule 3 to the Collateral Agreement (all of which filings
have been duly completed), the Collateral Agreement shall constitute a fully
perfected lien on, and security interest in, all right, title and interest of
the Company and its subsidiaries in such collateral and the proceeds thereof,
as security for the Obligations (as defined in the Collateral Agreement), in
each case prior and superior in right to any other person (other
16
than as set forth in the Intercreditor Agreement and) (except, in the case of
Collateral other than pledged stock, liens permitted by the covenant entitled
"Liens" in the Indenture); and (ii) each of the mortgages and deeds of trust
made by the Company or any of its subsidiaries, in favor of, or for the benefit
of, the Collateral Agent for the benefit of the Initial Purchaser and Eligible
Purchasers (collectively, the "Mortgages") is effective to create in favor of
the Collateral Agent, for the benefit of the Initial Purchaser and Eligible
Purchasers, a legal, valid and enforceable lien on the mortgaged properties
described therein and proceeds thereof, and when the Mortgages are filed in the
offices specified therein, each such Mortgage shall constitute a fully
perfected lien on, and security interest in, all right, title and interest of
the Company and its subsidiaries in the mortgaged properties and the proceeds
thereof, as security for the Obligations (as defined in the relevant Mortgage),
in each case prior and superior in right to any other person (other than as set
forth in the Intercreditor Agreement and, except, in the case of collateral
other than pledged stock, liens permitted by the covenant entitled "Liens" in
the Indenture.
(yy) As of the date hereof, the Company is a Florida corporation. As
of the Closing Date and upon consummation of the Plan of Reorganization, the
Company will be reincorporated as a Delaware corporation.
2. Representations, Warranties and Agreements of the Initial
Purchaser. The Initial Purchaser represents, warrants and agrees that:
(a) The Initial Purchaser is a QIB with such knowledge and experience
in financial and business matters as are necessary in order to evaluate the
merits and risks of an investment in the Securities.
(b) The Initial Purchaser (i) is not acquiring the Initial Securities
with a view to any distribution thereof or with any present intention of
offering or selling any of the Initial Securities in a transaction that would
violate the Securities Act or the securities laws of any State of the United
States or any other applicable jurisdiction; (ii) in connection with the Exempt
Resales, will solicit offers to buy the Securities only from and will offer to
sell the Securities only to, the Eligible Purchasers in accordance with this
Agreement; and (iii) will not offer or sell the Securities pursuant to, nor has
it offered or sold the Securities by, or otherwise engaged in, any form of
general solicitation or general advertising (within the meaning of Regulation
D; including, but not limited to, advertisements, articles, notices or other
communications published in any newspaper, magazine or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising).
(c) The Initial Purchaser understands that the Company and, for
purposes of the opinions to be delivered to you pursuant to Section 7 hereof,
counsel to the Company, will rely upon the accuracy and truth of the foregoing
representations and you hereby consent to such reliance.
The Initial Purchaser further agrees that, in connection with the
Exempt Resales, it will solicit offers to buy the Initial Securities only from,
and will offer to sell the Initial Securities only to, the Eligible Purchasers
in the Exempt Resales.
17
3. Purchase of the Securities by the Initial Purchaser. On the basis
of the representations and warranties contained in, and subject to the terms
and conditions of, this Agreement, the Company agrees to sell $25.0 million in
gross proceeds of Initial Notes, the terms of which are set forth in Schedule 4
of the Purchase Agreement, to the Initial Purchaser and the Initial Purchaser
agrees to purchase all of the Initial Notes. Pursuant to this Agreement, the
Initial Purchaser will receive a fee equal to 4% of the gross proceeds of the
Notes or will purchase the Initial Notes at an aggregate purchase price equal
to 96% of the principal amount thereof.
The Company shall not be obligated to deliver any of the Initial
Securities to be delivered, except upon payment of all the Initial Securities
to be purchased on such Closing Date as provided herein.
4. Delivery of and Payment for the Initial Securities.
(a) Delivery to the Initial Purchaser of and payment for the Initial
Securities shall be made at 9:00 a.m., New York City time, on the Closing Date
at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other place or time as you and the Company shall
designate.
(b) One or more Initial Notes in definitive form, registered in the
name of Cede & Company., as nominee of The Depository Trust Company ("DTC"), or
such other names as the Initial Purchaser may request upon at least one
business day's notice to the Company, having an aggregate principal amount at
maturity corresponding to the aggregate principal amount of Initial Notes sold
pursuant to Eligible Resales (collectively, the "Global Notes"), shall be
delivered by the Company to the Initial Purchaser, against payment by the
Initial Purchaser of the purchase price thereof by wire transfer of immediately
available funds as the Company may direct by written notice delivered to you
two business days prior to the Closing Date. The Global Notes in definitive
form shall be made available to you for inspection not later than 9:00 a.m. on
the business day immediately preceding the Closing Date.
(c) Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation
of the Initial Purchaser hereunder.
5. Further Agreements of the Company and Subsidiary Guarantors. Each
of the Company and the Subsidiary Guarantors agrees:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, of (i) the issuance by any state securities commission of
any stop order suspending the qualification or exemption from qualification of
any Initial Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purpose by the Commission or any state
securities commission or other regulatory authority, and (ii) the happening of
any event that makes any statement of a material fact made in the Offering
Memorandum untrue or that requires the making of any additions to or changes in
the Offering Memorandum in order to make the
18
statements therein, in light of the circumstances under which they were made,
not misleading. The Company shall use its best efforts to prevent the issuance
of any stop order or order suspending the qualification or exemption of the
Initial Securities under any state securities or Blue Sky laws and, if at any
time any state securities commission shall issue any stop order suspending the
qualification or exemption of the Initial Securities under any state securities
or Blue Sky laws, the Company shall use every reasonable effort to obtain the
withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you, without charge, as many copies of the Offering
Memorandum and any amendments or supplements thereto, as you may reasonably
request. The Company consents to the use of the Offering Memorandum, and any
amendments and supplements thereto required pursuant to this Agreement, by you
in connection with the Exempt Resales that are in compliance with this
Agreement.
(c) Not to amend or supplement the Offering Memorandum prior to the
Closing Date or during the period referred to in Section 5(d) below unless you
shall previously have been advised of, and shall not have reasonably objected
to, such amendment or supplement within a reasonable time, but in any event not
longer than five days after being furnished a copy of such amendment or
supplement. If, in connection with any Exempt Resales or market making
transactions after the date of this Agreement and prior to the consummation of
the Exchange Offer, any event shall occur that, in the judgment of the Company
or in the judgment of counsel to you, makes any statement of a material fact in
the Offering Memorandum untrue or that requires the making of any additions to
or changes in the Offering Memorandum in order to make the statements in the
Offering Memorandum, in light of the circumstances at the time that the
Offering Memorandum is delivered to prospective Eligible Purchasers, not
misleading, or if it is necessary to amend or supplement the Offering
Memorandum to comply with any applicable laws, the Company shall promptly
notify you of such event and prepare an appropriate amendment or supplement to
the Offering Memorandum so that (i) the statements in the Offering Memorandum
as amended or supplemented will, in light of the circumstances at the time that
the Offering Memorandum is delivered to prospective Eligible Purchasers, not be
misleading and (ii) the Offering Memorandum will comply with applicable law.
(d) To cooperate with you and your counsel in connection with the
qualification of the Initial Securities for offer and sale by you and by
dealers under the state securities or Blue Sky laws of such jurisdictions as
you may request; provided, however, that the Company shall not be obligated to
qualify as a foreign corporation in any jurisdiction in which they are not now
so qualified or to take any action that would subject them to general consent
to service of process in any jurisdiction in which they are not now so subject.
The Company shall continue such qualification in effect so long as required by
law for distribution of the Initial Securities and shall file such consents to
service of process or other documents as may be necessary in order to effect
such qualification.
(e) Prior to the Closing Date, to furnish to you any internal
consolidated financial statements of the Company that have been prepared by the
Company for any period subsequent to the period covered by the financial
statements appearing or incorporated by reference in the Offering Memorandum.
19
(f) To use its reasonable best efforts to do and perform all things
required to be done and performed under this Agreement by it prior to or after
the Closing Date and to satisfy all conditions precedent on its part to the
delivery of the Initial Securities (including pursuant to the proviso of
Section 7(v) hereof).
(g) Not to sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Securities Act) that
would be integrated with the sale of the Initial Securities in a manner that
would require the registration under the Securities Act of the sale to you or
the Eligible Purchasers of the Initial Securities.
(h) For a period of 3 years from the date of this Agreement, not to,
directly or indirectly, sell, contract to sell, grant any option to purchase,
issue any instrument convertible into or exchangeable for, or otherwise
transfer or dispose of, any debt securities of the Company or any of its
subsidiaries having a maturity of more than one year from the date of issue of
such securities, except (i) for the New Securities in connection with the
Exchange Offer or (ii) with the prior written consent of ▇▇▇▇▇▇ Brothers Inc.
(i) For the period that is two years after the Closing Date or for so
long as necessary to comply with Rule 144A in connection with resales by
registered holders or beneficial owners of Initial Securities, whichever is
longer, to make available to such registered holder or beneficial owner of
Initial Securities in connection with any sale thereof and any prospective
purchaser of such Initial Securities from such registered holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Securities Act (or
any successor provision thereto).
(j) To comply with the Company's agreements in the Registration Rights
Agreement, and all agreements set forth in the representation letters of the
Company to DTC relating to the approval of the Securities by DTC for
"book-entry" transfer.
(k) To use its best efforts to effect the inclusion of the Notes in
the National Association of Securities Dealers, Inc. Automated Quotation System
- PORTAL ("PORTAL").
(l) To apply the net proceeds from the sale of the Initial Notes being
sold by the Company as set forth in Section 1(uu) hereof.
(m) During the period that is two years after the Closing Date, to
take such steps as shall be necessary to ensure that the Company does not
become an "investment company" within the meaning of such term under the
Investment Company Act of 1940, as amended, and the rules and regulations of
the Commission thereunder.
(n) To do all things reasonably necessary to comply with the Plan of
Reorganization.
6. Expenses. The Company agrees that, whether or not the transactions
contemplated by this Agreement are consummated or this Agreement becomes
effective or is
20
terminated, to pay all costs, expenses, fees and taxes incident to and in
connection with: (i) the preparation, printing, filing and distribution of the
Offering Memorandum (including, without limitation, financial statements) and
all amendments and supplements thereto, (ii) the preparation, printing
(including, without limitation, word processing and duplication costs) and
delivery of this Agreement, the other Operative Documents, any Blue Sky
Memoranda and any other agreements, memoranda, correspondence and other
documents printed and delivered in connection herewith and with the Exempt
Resales, (iii) your reasonable expenses incurred in connection with acting as
the Initial Purchaser hereunder (including the fees and expenses of your
counsel), (iv) the issuance and delivery by the Company of the Securities, (v)
the qualification of the Securities for offer and sale under the securities or
Blue Sky laws of the several states (including, without limitation, the fees
and disbursements of your counsel relating to such registration or
qualification), (vi) furnishing such copies of the Offering Memorandum, and all
amendments and supplements thereto, as may be reasonably requested by the
Initial Purchaser for use in connection with the initial Exempt Resales, (vii)
the preparation of certificates for the Securities including, without
limitation, printing and engraving, (viii) the fees, disbursements and expenses
of the Company's counsel and accountants, (ix) all expenses and listing fees in
connection with the application for quotation of the Initial Notes in PORTAL,
(x) all fees and expenses (including fees and expenses of counsel) of the
Company in connection with the approval of the Securities by DTC for
"book-entry" transfer and (xi) the performance by the Company of its other
obligations under this Agreement to the extent not provided for above.
7. Conditions of the Obligations. The obligations of the Initial
Purchaser hereunder are subject to the accuracy, when made, and again on the
Closing Date (as if made again on and as of such date), of the representations
and warranties of the Company and the Subsidiary Guarantors contained herein,
to the performance by the Company and the Subsidiary Guarantors of their
obligations hereunder and to each of the following additional terms and
conditions, and the obligations of the Company hereunder are subject to the
occurrence of the events described in Sections 7(n) and 7(o) hereof:
(a) The Offering Memorandum shall have been printed and copies made
available to you not later than 9:00 a.m., New York City time, on the day
following the date of this Agreement or at such later date and time as you may
approve in writing.
(b) The Initial Purchaser shall not have discovered and disclosed to
the Company on or prior to such Closing Date that the Offering Memorandum or
any amendment or supplement thereto contains an untrue statement of a fact
which, in the reasonable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Initial Purchaser, is material or omits to state a fact which, in the opinion
of such counsel, is material and is necessary to make the statements, in light
of the circumstances under which they were made, not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the other Operative
Documents, the Plan of Reorganization, the Senior Credit Facility, the Offering
Memorandum, and all other legal matters relating to this Agreement and the
transactions contemplated hereby and thereby shall be reasonably satisfactory
in all material respects to counsel for the Initial Purchaser, and the
21
Company shall have furnished to such counsel all documents and information that
they may reasonably request to enable them to pass upon such matters.
(d) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ shall have furnished to the Initial
Purchaser, its written opinion, as counsel to the Company, addressed to the
Initial Purchaser and dated as of the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchaser and its counsel, to the effect
that:
(i) Each of the Company and its subsidiaries (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the corporate power and
authority, and the legal right, to own and operate its properties, to
lease the properties it operates as lessee and to conduct the business
in which it is currently engaged, (c) is duly qualified as a foreign
corporation in each of the jurisdictions listed on Schedule III hereto
and is in good standing under the laws of each jurisdiction where its
ownership, lease or operation of its properties or the conduct of its
business requires such qualification and (d) is in compliance with its
certificate of incorporation and by-laws or other organizational or
governing documents and any law, treaty, rule or regulation or
determination of an arbiter or a court or other governmental authority
applicable to it or binding upon it or any of its property or to which
it or any of its property is subject, except to the extent that the
failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(ii) Each of the Company and the Subsidiary Guarantors has
all requisite power and authority to execute, deliver and perform its
obligations under this Agreement, the Plan of Reorganization and the
other Operative Documents and to authorize, issue and sell the
Securities as contemplated by this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by the Company and each of the Subsidiary
Guarantors.
(iv) No consent or authorization of, approval by, filing
with, notice to or other act by or in respect of, any governmental
authority or any other person is required in connection with the
issuance and sale of the Securities hereunder, or with the execution,
delivery, performance, validity or enforceability of the Operative
Documents except (i) as may be required by the securities or "blue
sky" laws of any state of the United States in connection with the
sale of the Initial Notes and the New Notes, (ii) as contemplated by
the Registration Rights Agreement, (iii) for filings, registrations,
recordations in all necessary and appropriate jurisdictions to perfect
the security interests in the Collateral as contemplated by the
Collateral Agreement and (iv) the final order of the Bankruptcy Court,
in accordance with Section 1129 of the Bankruptcy Code, of the Plan of
Reorganization.
(v) The Registration Rights Agreement has been duly and
validly authorized, executed and delivered by each of the Company and
the Subsidiary Guarantors and, assuming due authorization, execution
and delivery by the Initial Purchaser, constitutes the valid and
binding agreement of each of the Company and the Subsidiary
Guarantors,
22
enforceable against them in accordance with its terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights
generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether in
a proceeding in equity or at law), except that such counsel need not
express an opinion concerning enforceability of the provisions of
Section 8 of the Registration Rights Agreement.
(vi) The Indenture has been duly and validly authorized,
executed and delivered by the Company and each of the Subsidiary
Guarantors, and assuming due authorization, execution and delivery by
the Trustee, constitutes the valid and binding agreement of the
Company and each of the Subsidiary Guarantors, enforceable against
them in accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other
similar laws affecting creditors' rights generally from time to time
in effect and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing, regardless of whether in a proceeding in equity or at
law); no qualification of the Indenture under the TIA is required in
connection with the offer and sale of the Initial Securities
contemplated hereby or in connection with the initial resale of such
Initial Securities in the manner contemplated by this Agreement and
the Offering Memorandum to register the Initial Securities under the
Securities Act, it being understood that no opinion will be expressed
as to any subsequent resale of any Initial Securities.
(vii) The Collateral Agreement and the other Security
Documents (including the Mortgages) have been duly and validly
authorized, executed and delivered by each of the Company and the
Subsidiary Guarantors which are a party thereto and, assuming due
authorization, execution and delivery by the Collateral Agent,
constitutes the valid and binding agreement of each of the Company and
the Subsidiary Guarantors, enforceable against them in accordance with
their terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws
affecting creditors' rights generally from time to time in effect and
to general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing,
regardless of whether in a proceeding in equity or at law).
(viii) The Initial Securities have been duly and validly
authorized and executed by the Company and the Subsidiary Guarantors
and, assuming due authentication of the Initial Notes by the Trustee,
upon delivery to the Initial Purchaser against payment therefor in
accordance with the terms hereof, have been validly issued and
delivered, and constitute valid and binding obligations of the Company
and the Subsidiary Guarantors entitled to the benefits of the
Indenture and the Collateral Agreement, enforceable against the
Company and the Subsidiary Guarantors in accordance with their terms
(subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of
materiality,
23
reasonableness, good faith and fair dealing, regardless of whether in
a proceeding in equity or at law).
(ix) The New Securities have been duly and validly
authorized by the Company and the Subsidiary Guarantors and if and
when duly issued and authenticated in accordance with the terms of the
Indenture and the Collateral Agreement and delivered in accordance
with the Exchange Offer provided for in the Registration Rights
Agreement, will constitute valid and binding obligations of the
Company and the Subsidiary Guarantors entitled to the benefits of the
Indenture and the Collateral Agreement, enforceable against the
Company and the Subsidiary Guarantors in accordance with their terms
(subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless
of whether in a proceeding in equity or at law).
(x) The Senior Credit Facility has been duly and validly
authorized, executed and delivered by the Company and each of the
Subsidiary Guarantors, and, assuming due authorization, execution and
delivery by the lenders party thereto, the Arranger, the Syndication
Agent and the Administrative Agent, constitutes the valid and binding
agreement of the Company and each of the Subsidiary Guarantors,
enforceable against them in accordance with its terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights
generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether in
a proceeding in equity or law).
(xi) The Intercreditor Agreement has been duly and validly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by the other parties thereto,
constitutes the valid and binding agreement of the Company,
enforceable against it in accordance with its terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights
generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether in
a proceeding in equity or law).
(xii) (a) All the shares of capital stock of the Company
outstanding have been duly authorized and validly issued and are fully
paid and nonassessable. and (b) all the outstanding shares of capital
stock of the Subsidiary Guarantors have been duly authorized and
validly issued, are fully paid and nonassessable, and are wholly owned
by the Company, directly or indirectly, through one of the other
subsidiaries, free and clear of any lien, adverse claim, security
interest, equity or other encumbrance, other than liens in favor of
the Collateral Agent under the Collateral Agreement and, without
duplication, as permitted under the covenant entitled "Liens" in the
Indenture.
24
(xiii) To the knowledge of such counsel, no litigation,
investigation or proceeding of or before any arbitrator or
governmental authority is pending or, to the knowledge of such
counsel, threatened by or against the Company or any of its
subsidiaries or against any of their respective properties or revenues
(a) with respect to any of the Operative Documents or the Senior
Credit Facility or any of the transactions contemplated hereby or
thereby or (b) which could reasonably be expected to have a Material
Adverse Effect.
(xiv) The execution, delivery and performance of this
Agreement, the Senior Credit Facility and the other Operative
Documents and the issuance of the Securities and the consummation of
the transactions contemplated hereby and thereby will not conflict
with, or result in a breach or violation of any of the terms or
provisions of, or (including with the giving of notice or the lapse of
time or both) constitute a default under (a) any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any of the
properties or assets of the Company or any of its subsidiaries is
subject, (b) the provisions of the charter, by-laws or other
organizational documents of the Company or any of its subsidiaries or
(c) any statute or any order, rule or regulation of the United States
or the states of Delaware or New York or, to such counsel's knowledge,
of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties or
assets, except in the cases of clause (a) or (c), such breaches,
violations or defaults that in the aggregate would not have a Material
Adverse Effect.
(xv) In addition, the consummation of the transactions
contemplated by this Agreement shall not cause any third party to have
any rights of first refusal under any agreement listed on a
certificate of an officer of the Company as being the Company's and
its subsidiaries' material agreements that has not already been
described in the Offering Memorandum as to which the Company and any
of its subsidiaries and any of their property or assets may be
subject.
(xvi) Neither the Company nor any of its subsidiaries is
and, upon sale of the Initial Securities to be issued and sold thereby
in accordance herewith and the application of the net proceeds to the
Company of such sale as described in the Offering Memorandum, will be
an "investment company" within the meaning of the Investment Company
Act of 1940, as amended.
(xvii) When the Initial Securities are issued and delivered
pursuant to this Agreement, such Initial Securities will not be of the
same class (within the meaning of Rule 144A under the Securities Act)
as securities of the Company that are listed on a national securities
exchange registered under Section 6 of the Exchange Act or that are
quoted in a United States automated inter-dealer quotation system.
(xviiiO) Assuming (a) that your representations and
warranties in Section 2 are true, (b) compliance by you with your
covenants set forth in Section 2 and (c) that each of the Eligible
Purchasers is a QIB, it is not necessary in connection with the offer,
25
sale and delivery of the Initial Securities hereunder or in connection
with the resale of such Initial Securities in the manner contemplated
by this Agreement and the Offering Memorandum to register the Initial
Securities under the Securities Act.
(xix) To the knowledge of such counsel, except as disclosed
in the Offering Memorandum, there are no contracts, agreements or
understandings between the Company or any of its subsidiaries and any
person granting such person the right to require the Company or any of
its subsidiaries to file a registration statement under the Securities
Act with respect to any securities of the Company owned or to be owned
by such person or to require the Company or any of its subsidiaries to
include such securities in all the securities registered pursuant to
the Registration Statements or in any securities being registered
pursuant to any other registration statement filed by the Company or
any of its subsidiaries under the Securities Act.
(xx) The description of the Indenture, the Initial
Securities, the Registration Rights Agreement, the Collateral
Agreement, the Intercreditor Agreement, the Senior Credit Facility and
the Plan of Reorganization in the Offering Memorandum conform in all
material respects to the terms thereof.
(xxi) The Company is not required to deliver to the Eligible
Purchasers the information specified in Rule 144A(d)(4) in connection
with the Exempt Resales.
Such counsel may state that whenever their opinion herein is qualified
by the phrase "of which we have knowledge" or "to our knowledge," it is
intended to indicate that the current actual knowledge of those attorneys
within that firm actively engaged in the representation of the Company and its
Subsidiaries is not inconsistent with that portion of the opinion which such
phrase qualifies. The opinion of such counsel may be limited to the laws of the
State of New York, the General Corporation Law of the State of Delaware and the
Federal laws of the United States.
(e) In connection with the transactions contemplated by this Agreement
and the filings, registrations and recordations contemplated by the Collateral
Agreement and the Mortgages, (i) Dykema, Gosset, as special Michigan counsel;
(ii) Armstrong, Teasdale, Schafly & ▇▇▇▇▇, as special Missouri counsel; (iii)
▇▇▇▇▇▇ ▇▇▇▇▇▇ Tamposi, as special New Hampshire counsel; (iv) Frost & ▇▇▇▇▇▇
LLP, as special Ohio counsel; (v) Reed, Smith, ▇▇▇▇ & ▇▇▇▇▇▇, as special
Pennsylvania counsel; (vi) ▇▇▇▇▇▇ Law Firm P.A., as special South Carolina
counsel; (vii) Hunton & ▇▇▇▇▇▇▇▇, as special Tennessee counsel; (viii) Hunton &
▇▇▇▇▇▇▇▇, as special Virginia counsel; and (ix) McGill & McGill, as special
Iowa counsel, in addition to such other counsel as the Company and the Initial
Purchaser shall deem appropriate to opine on the perfection of the Initial
Purchaser's and the Eligible Purchasers' security interest in the Collateral,
shall have furnished to the Initial Purchaser their written opinion as special
local counsel to the Company addressed to the Initial Purchaser and dated as of
the Closing Date, in form and substance reasonably satisfactory to the Initial
Purchaser and its counsel.
26
(f) The Company, the Subsidiary Guarantors and the Trustee shall have
entered into the Indenture and the Initial Purchaser shall have received
counterparts, conformed as executed, thereof.
(g) The Company, the Subsidiary Guarantors and the Initial Purchaser
shall have entered into the Registration Rights Agreement and the Initial
Purchaser shall have received counterparts, conformed as executed, thereof.
(h) The Company, the Subsidiary Guarantors, the Collateral Agent and
the Trustee shall have entered into the Collateral Agreement and the Initial
Purchaser shall have received counterparts, conformed as executed, thereof.
(i) The Company, the Trustee, the Administrative Agent and the
Collateral Agent shall have entered into the Intercreditor Agreement and the
Initial Purchaser shall have received counterparts, conformed as executed,
thereof.
(j) Each of the Company and the Subsidiary Guarantors shall have
furnished to the Initial Purchaser a certificate, dated as of the Closing Date,
with respect to the Company, of its President, Vice President or Treasurer and
its Chief Financial Officer and, with respect to the Subsidiary Guarantors of
its President, Vice President or Treasurer and its principal financial officer,
stating that:
(i) The representations, warranties and agreements of the
Company and the Subsidiary Guarantors in Section 1 are true and
correct as of such Closing Date and, after giving effect to the
consummation of the transactions contemplated by this Agreement, the
other Operative Documents, the Senior Credit Facility and the Plan of
Reorganization; the Company has complied with all its agreements
contained herein, and the condition set forth in Section 7(k) has been
fulfilled;
(ii) (A) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Offering Memorandum any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Offering Memorandum, except with regard to the
strike at the two General Motors plants that ended on July 31, 1998,
or (B) since such date there has not been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries and
no event has occurred which is material to the consolidated financial
position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Offering Memorandum; and
(iii) They have carefully examined the Offering Memorandum
and, in their opinion (i) as of its date and as of the Closing Date,
the Offering Memorandum did not include any untrue statement of a
material fact and did not omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, and
(ii) since the date of the
27
Offering Memorandum, no event has occurred which should have been set
forth in a supplement or amendment to the Offering Memorandum.
(k) (i) There not occurring or becoming known to the Initial Purchaser
as of the date of this Agreement any material adverse condition or material
adverse change in or affecting the business, operations, condition (financial
or otherwise), assets, liabilities, management, prospects or value of the
Company or (ii) the Initial Purchaser not becoming aware after the date of this
Agreement of any information or other matter affecting the Company or the
transactions contemplated hereby that is inconsistent in a material and adverse
respect with any such information or other matter disclosed to the Initial
Purchaser prior to the date of this Agreement, the effect of which, in any such
case described in clause (i) or (ii), is, in the judgment of the Initial
Purchaser, so material and adverse as to make it impracticable or inadvisable
to proceed with the payment for and delivery of the Securities being delivered
on such Closing Date on the terms and in the manner contemplated in the
Offering Memorandum.
(l) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ shall have been furnished with such
other documents and opinions, in addition to those set forth above, as they may
reasonably require for the purpose of enabling them to review or pass upon the
matters referred to in this Agreement and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
(m) (i) The Bankruptcy Court shall have entered a final order in form
and substance reasonably satisfactory to the Initial Purchaser confirming, in
accordance with Section 1129 of the Bankruptcy Code, the Plan of
Reorganization, which order shall be in full force and effect and shall not
have been stayed, reversed, vacated or otherwise modified; (ii) the Bankruptcy
Court shall have entered a final order in form and substance reasonably
satisfactory to the Initial Purchaser granting the Debtors' Motion for Entry of
Order in Aid of Implementation of the Plan and Approving Terms of Revised Exit
Financing Transaction (the "Motion") filed with the Bankruptcy Court on
November 4, 1998, which order shall be in full force and effect and shall not
have been stayed, reversed, vacated or otherwise modified; and (iii) each of
the Official Committee of Unsecured Creditors and the lenders under the DIP
Credit Facilities shall have joined in the Motion, shall have filed with the
Bankruptcy Court separate pleadings stating that they have no objection to the
relief being sought in the Motion or shall not have objected to the relief
being sought in the Motion or sought to have the granting of the Motion stayed,
reversed or vacated.
(n) The Senior Credit Facility shall have been consummated pursuant to
documentation reasonably satisfactory to the Initial Purchaser.
(o) The Plan of Reorganization shall have been consummated, shall be
in full force and effect, no provision thereof shall have been waived (except
for Section 12.2(j) of the Plan of Reorganization), amended, supplemented or
otherwise modified and the Company and its subsidiaries shall be in full
compliance with the Plan of Reorganization.
(p) The Initial Purchaser shall have received (i) the Pro Forma
Balance Sheet, (ii) audited consolidated financial statements of the Company
and its subsidiaries for the 1996
28
and 1997 fiscal years and (iii) unaudited interim consolidated financial
statements of the Company and its subsidiaries for each quarterly period ended
subsequent to the date of the latest applicable financial statements delivered
pursuant to clause (ii) of this paragraph as to which such financial statements
are available, and such financial statements shall not, in the reasonable
judgment of the Initial Purchaser, reflect any material adverse change in the
consolidated financial condition of the Company and its subsidiaries, as
reflected in the financial statements contained in the Offering Memorandum.
(q) All governmental and third party approvals (including landlords'
and other consents) necessary or, in the reasonable discretion of the Initial
Purchaser, advisable in connection with the reorganization, the financing
contemplated hereby and the continuing operations of the Company and its
Subsidiaries shall have been obtained and be in full force and effect, and all
applicable waiting periods shall have expired without any action being taken or
threatened by any competent authority which would restrain, prevent or
otherwise impose materially adverse conditions on the transaction or the
financing contemplated hereby.
(r) The Initial Purchaser shall have received all fees required to be
paid, and all expenses for which invoices have been presented (including
reasonable fees, disbursements and other charges of counsel to the Initial
Purchaser), on or before the Closing Date.
(s) The Initial Purchaser shall have received the results of a recent
lien and title search regarding mortgages, without duplication of the condition
stated in Section 7(v) hereof, in each of the jurisdictions where assets of the
Company and the subsidiaries are located, and such search shall reveal no liens
on any of the assets or mortgages on any properties of the Company or its
subsidiaries, except for (i) liens and mortgages permitted by the covenant
entitled "Liens" in the Indenture or (ii) such pre-petition liens and mortgages
and liens and mortgages securing the DIP Credit Facilities that will be
extinguished by, or simultaneously with, the closing of the offering of the
Notes and for which termination notices relating thereto will have been
delivered by the Company to the Initial Purchaser at the Closing.
(t) The Collateral Agent shall have received (i) the certificates
representing the shares of Capital Stock pledged pursuant to the Collateral
Agreement, together with an undated stock power for each such certificate
executed in blank by a duly authorized officer of the pledgor thereof and (ii)
each promissory note pledged to the Collateral Agent pursuant to the Collateral
Agreement endorsed (without recourse) in blank (or accompanied by an executed
transfer form in blank satisfactory to the Initial Purchaser) by the pledgor
thereof.
(u) Each document (including, without limitation, any Uniform
Commercial Code financing statement) required by the Collateral Agreement or
the other Security Documents or under law or reasonably requested by the
Collateral Agent to be filed, registered or recorded in order to create in
favor of the Collateral Agent, for the benefit of the Initial Purchaser and
Eligible Purchasers, a perfected lien on the collateral described therein,
prior and superior in right to any other person (other than as set forth in the
Intercreditor Agreement and) (other than with respect to liens expressly
permitted by the covenant entitled "Liens" in the Indenture), shall be in
proper form for filing, registration or recordation and shall have been duly
filed in all places necessary or advisable to perfect such security interests,
including, with respect to the Collateral,
29
in each jurisdiction where such Collateral is located, and all other actions
shall have been taken which shall have been reasonably requested by the Initial
Purchaser or its counsel to perfect such interests.
(v) If requested by the Initial Purchaser, the Collateral Agent shall
have received, and the title insurance company issuing the policy referred to
in Section 7(w) below (the "Title Insurance Company") shall have received, maps
or plats of an as-built survey of the sites of the mortgaged properties
certified to the Collateral Agent and the Title Insurance Company in a manner
reasonably satisfactory to them, dated a date satisfactory to the Initial
Purchaser and the Title Insurance Company by an independent professional
licensed land surveyor reasonably satisfactory to the Initial Purchaser and the
Title Insurance Company, which maps or plats and the surveys on which they are
based shall be made in accordance with the Minimum Standard Detail Requirements
for Land Title Surveys jointly established and adopted by the American Land
Title Association and the American Congress on Surveying and Mapping in 1992,
and, without limiting the generality of the foregoing, there shall be surveyed
and shown on such maps, plats or surveys the following: (A) the locations on
such sites of all the buildings, structures and other improvements and the
established building setback lines; (B) the lines of streets abutting the sites
and width thereof; (C) all visible and/or recorded access and other easements
appurtenant to the sites; (D) all roadways, paths, driveways, encroachments and
overhanging projections and similar encumbrances affecting the site, recorded
or apparent from a physical inspection of the sites; (E) any encroachments on
any adjoining property by the building structures and improvements on the
sites; (F) if the site is described as being on a filed map, a legend relating
the survey to said map; and (G) the flood zone designations, if any, in which
the mortgaged properties are located; provided that, to the extent not
delivered by the Closing Date, the Company shall, within 45 days of the Closing
Date, deliver, or have delivered, to the Collateral Agent and the Title
Insurance Company surveys of the properties subject to the Mortgages, meeting
the requirements of this section such that the Title Company will omit
corresponding survey exceptions on the relevant title insurance policies issued
pursuant to Section 7(w) hereof and will issue those endorsements to such title
insurance policies (such as survey and access) that cannot be issued without
such surveys.
(w) The Collateral Agent shall have received in respect of each
property subject to a Mortgage a mortgagee's title insurance policy (or
policies) or marked up unconditional binder for such insurance. Each such
policy shall (A) be in an amount satisfactory to the Initial Purchaser; (B)
insure that the Mortgage insured thereby creates a valid second lien on such
mortgaged property; (C) name the Collateral Agent, for the benefit of the
Initial Purchaser and the Eligible Purchasers, as the insured thereunder; (D)
be in the form of ALTA Loan Policy - 1970 (Amended 10/17/70 and 10/17/84) (or
equivalent policies); (E) contain such endorsements and affirmative coverage as
the Initial Purchaser may reasonably request; and (F) be satisfactory to the
Initial Purchaser (including any such title companies acting as Company-
insurers or reinsurers, at the option of the Initial Purchaser). The Collateral
Agent shall have received evidence satisfactory to it that all premiums in
respect of each such policy, all charges for mortgage recording tax, and all
related expenses, if any, have been paid.
(x) For any property set forth in a schedule to the Collateral
Agreement if requested by the Initial Purchaser, the Collateral Agent shall
have received (A) a policy of flood
30
insurance which (1) covers any parcel of improved real property which is
encumbered by any Mortgage (2) is written in an amount not less than the
outstanding principal amount of the indebtedness secured by such Mortgage which
is reasonably allocable to such real property or the maximum limit of coverage
made available with respect to the particular type of property under the
National Flood Insurance Act of 1968, whichever is less, and (3) has a term
ending not later than the maturity of the Indebtedness secured by such Mortgage
and (B) confirmation that the Company has received the notice required pursuant
to Section 208(e)(3) of Regulation H of the Board.
(y) The Initial Purchaser shall have received a copy of all recorded
documents referred to, or listed as exceptions to title in, the title policy or
policies referred to in subsection (w) above and a copy of all other material
documents affecting the mortgaged properties.
(z) The Initial Purchaser shall have received insurance certificates
satisfying the requirements of Section 5 of the Collateral Agreement.
(aa) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or
minimum prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall
have been declared by Federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an escalation
in hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv) there
shall have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international conditions on
the financial markets in the United States shall be such) as to make it, in the
judgment of the Initial Purchaser, impracticable or inadvisable to proceed with
the offering or delivery of the Securities being delivered on such Closing Date
on the terms and in the manner contemplated in the Offering Memorandum.
(bb) The Notes shall have been approved by the National Association of
Securities Dealers, Inc. for trading in the PORTAL market.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Initial Purchaser.
8. Indemnification and Contribution.
(a) Each of the Company and the Subsidiary Guarantors hereby jointly
and severally agrees to indemnify and hold harmless the Initial Purchaser, its
officers and employees and each person, if any, who controls the Initial
Purchaser within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating
31
to purchases and sales of Securities), to which the Initial Purchaser, officer,
employee or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Offering Memorandum (as amended or supplemented)
or any written or oral communication furnished by or on behalf of the Company
for use in connection with reselling the Securities or in any amendment or
supplement thereto, (ii) the omission or alleged omission to state in the
Offering Memorandum (as amended or supplemented) or in any written or oral
communication furnished by or on behalf of the Company for use in connection
with reselling the Securities or in any amendment or supplement thereto any
material fact required to be stated therein or necessary to make the statements
therein not misleading or (iii) any act or failure to act or any alleged act or
failure to act by the Initial Purchaser in connection with, or relating in any
manner to, the Securities or the offering contemplated hereby, and which is
included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clauses (i) or (ii)
above (provided that neither the Company nor the Subsidiary Guarantors shall be
liable under this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by the Initial Purchaser through its gross
negligence or willful misconduct); and shall reimburse the Initial Purchaser
and each such officer, employee or controlling person promptly upon demand for
any legal or other expenses reasonably incurred by the Initial Purchaser,
officer, employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
neither the Company nor the Subsidiary Guarantors shall be liable in any such
case to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in the Offering Memorandum (as
amended or supplemented) or in any written or oral communication furnished by
or on behalf of the Company for use in connection with reselling the securities
or in any amendment or supplement thereto, in reliance upon and in conformity
with written information concerning the Initial Purchaser specifically for
inclusion therein. The foregoing indemnity agreement is in addition to any
liability which the Company and the Subsidiary Guarantors may otherwise have to
the Initial Purchaser or to any officer, employee or controlling person of the
Initial Purchaser.
(b) The Initial Purchaser shall indemnify and hold harmless the
Company, the Subsidiary Guarantors, their respective officers and employees,
each of their respective directors, and each person, if any, who controls the
Company or any Subsidiary Guarantor within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company or any Subsidiary Guarantor or
any such director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in the Offering Memorandum (as
amended or supplemented) or (ii) the omission or alleged omission to state in
the Offering Memorandum (as amended or supplemented) any material fact required
to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information concerning the Initial
32
Purchaser furnished to the Company by or on behalf of the Initial Purchaser
specifically for inclusion therein, and shall reimburse the Company or such
Subsidiary Guarantor and any such director, officer or controlling person for
any legal or other expenses reasonably incurred by the Company or such
Subsidiary Guarantor or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability which the
Initial Purchaser may otherwise have to the Company, the Subsidiary Guarantors
or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
8 of the notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided, however, that the
failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation;
provided, however, that the Initial Purchaser shall have the right to employ
counsel to represent jointly the Initial Purchaser and its officers, employees
and controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Initial Purchaser
against the Company and the Subsidiary Guarantors under this Section 8 if, in
the reasonable judgment of the Initial Purchaser, it is advisable for the
Initial Purchaser, its officers, employees and controlling persons to be
jointly represented by separate counsel, and in that event the fees and
expenses of such separate counsel shall be paid by the Company and the
Subsidiary Guarantors. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
33
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Subsidiary Guarantors on the one hand and the
Initial Purchaser on the other from the offering of the Initial 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 Subsidiary Guarantors on the one hand and the Initial
Purchaser on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Subsidiary Guarantors on the one hand
and the Initial Purchaser on the other with respect to such offerings shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Initial Securities purchased under this Agreement (before deducting
expenses) received by the Company and the Subsidiary Guarantors, on the one
hand, and the total discounts and commissions received by the Initial Purchaser
with respect to the Initial Securities purchased under this Agreement, on the
other hand, bear to the total gross proceeds from the offering of the Initial
Securities under this Agreement, in each case as set forth in the table on the
cover page of the Offering Memorandum. The relative fault shall be determined
by reference to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company and the Subsidiary Guarantors or the
Initial Purchaser, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Initial Purchaser agree that it would not be just
and equitable if contributions pursuant to this Section 8(d) were to be
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Section shall be deemed to include, for purposes of this Section 8(d), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(d), the Initial Purchaser
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Initial Securities purchased by it were resold to
Eligible Purchasers exceeds the amount of any damages which the Initial
Purchaser has otherwise paid or become liable to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission. 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.
(e) The Initial Purchaser confirms and the Company acknowledges that
the last sentence on the cover page, the stabilization legend on page 4 and the
seventh and ninth paragraphs of the section entitled "Plan of Distribution" in
the Offering Memorandum constitute the only information furnished in writing to
the Company by or on behalf of the Initial Purchaser specifically for inclusion
in the Offering Memorandum.
34
9. Termination. The obligations of the Initial Purchaser hereunder may
be terminated by ▇▇▇▇▇▇ Brothers Inc. by notice given to the Company prior to
delivery of and payment for the Initial Securities if, prior to that time, any
of the events described in Sections 7(k), 7(m), 7(n), 7(o) and 7(aa) shall have
occurred or if the Initial Purchaser shall decline to purchase the Initial
Securities for any reason permitted under this Agreement, but, in any event,
this Agreement shall terminate on December 11, 1998 if the transactions
contemplated hereby shall not have been earlier consummated.
10. Reimbursement of Initial Purchaser's Expenses. Regardless of
whether the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company and the Subsidiary Guarantors will
reimburse the Initial Purchaser for all reasonable out-of-pocket expenses
(including the fees and disbursements of their counsel) incurred by the Initial
Purchaser in connection with this Agreement and the proposed purchase of
the Initial Securities, and upon demand the Company and the Subsidiary
Guarantors shall pay the full amount thereof to ▇▇▇▇▇▇ Brothers Inc.
11. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) If to the Initial Purchaser, shall be delivered or sent by mail,
telex or facsimile transmission to ▇▇▇▇▇▇ Brothers Inc., Three World Financial
Center, New York, New York 10285, Attention: Capital Markets (Fax:
▇▇▇-▇▇▇-▇▇▇▇), with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Rise ▇. ▇▇▇▇▇▇, Esq. (Fax: ▇▇▇-▇▇▇-▇▇▇▇);
and
(b) If to Company or the Subsidiary Guarantors, shall be delivered or
sent by mail, telex or facsimile transmission to Harvard Industries, Inc., ▇
▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Fax:
▇▇▇-▇▇▇-▇▇▇▇), with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. (Fax: ▇▇▇-▇▇▇-▇▇▇▇).
Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof. Any notice of a change of address or facsimile
transmission number must be given by the Company, the Subsidiary Guarantors or
by the Initial Purchaser, as the case may be, in writing, at least three days
in advance of such change.
12. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchaser, its personal
representatives and successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that the
representations, warranties, indemnities and agreements of the Company and the
Subsidiary Guarantors contained in this Agreement shall also be deemed to be
for the benefit of the person or persons, if any, who control the Initial
Purchaser within the meaning of Section 15 of the Securities Act.
35
13. Survival. The respective indemnities, representations, warranties
and agreements of the Initial Purchaser and the Company and the Subsidiary
Guarantors contained in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Securities and shall remain in full force and effect,
regardless of any investigation made by on behalf of any of them or any person
controlling any of them.
14. Definition of the Terms "Business Day" and "Subsidiary." For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
15. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
16. Counterparts. This Agreement may be executed in one more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[The rest of this page has been left black intentionally; the signature page
follows.]
36
If the foregoing correctly sets forth the agreement among the Initial
Purchaser, the Company and the Subsidiary Guarantors, please indicate your
acceptance in the space provided for the purpose below.
Very truly yours,
HARVARD INDUSTRIES, INC.
By: /S/ D. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: D. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary and Vice President, Law
▇▇▇▇▇▇▇-▇▇▇▇▇▇, INC.
HARVARD TRANSPORTATION
CORPORATION
▇▇▇▇▇▇▇-▇▇▇▇▇▇ GREENEVILLE, INC.
POTTSTOWN PRECISION CASTING, INC
▇▇▇▇▇▇▇-▇▇▇▇▇▇ TECHNOLOGIES, INC.
▇▇▇▇▇▇▇-▇▇▇▇▇▇ TOLEDO, INC.
▇▇▇▇▇▇ AUTOMOTIVE, INC.
▇▇▇▇▇-ALBION CORPORATION
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ CORPORATION
On behalf of each of the above
Subsidiary Guarantors
By: /S/ D. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: D. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Schedule I
Subsidiary Guarantors
Harvard Transportation Corporation
▇▇▇▇▇▇▇-▇▇▇▇▇▇, Inc.
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Toledo, Inc.
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Pottstown, Inc.
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Greeneville, Inc.
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Technologies, Inc.
▇▇▇▇▇▇ Automotive, Inc.
▇▇▇▇▇-Albion Corporation
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Corporation
Schedule II
Subsidiaries
Harvard Transportation Corporation (Michigan)
▇▇▇▇▇▇▇-▇▇▇▇▇▇, Inc. (Delaware)
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Toledo, Inc. (Delaware)
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Pottstown, Inc. (Delaware)
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Greeneville, Inc. (Delaware)
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Technologies, Inc. (Delaware)
▇▇▇▇▇▇ Automotive, Inc. (Michigan)
▇▇▇▇▇-Albion Corporation (Michigan)
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Corporation (New Hampshire)
Trim Trends, Ltd. (Canada)
177192 Canada, Inc. (Canada)
EXHIBIT A
Form of Registration Rights Agreement