EXHIBIT 1.1
$258,000,000
R.J. TOWER CORPORATION
12% Senior Notes due 2013
Guaranteed by
TOWER AUTOMOTIVE, INC.
PURCHASE AGREEMENT
June 6, 2003
J.P. Morgan Securities Inc.
As Representative of the
several Initial Purchasers listed
in Schedule 1 hereto
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
R.J. Tower Corporation, a Michigan corporation (the "Company"),
proposes to issue and sell to the several Initial Purchasers listed in Schedule
1 hereto (the "Initial Purchasers"), for whom you are acting as representative
(the "Representative"), $258,000,000 principal amount of its 12% Senior Notes
due 2013 (the "Securities"). The Securities will be issued pursuant to an
Indenture to be dated as of June 13, 2003 (the "Indenture") among the Company,
Tower Automotive, Inc. ("Tower Automotive" or "Parent Guarantor") and each of
the Company's subsidiaries listed in Schedule 3 hereto (the "Subsidiary
Guarantors" and together with the Parent Guarantor, the "Guarantors") and BNY
Midwest Trust Company, as trustee (the "Trustee"), and will be guaranteed on an
unsecured senior basis by each of the Guarantors (the "Guarantees").
The Securities will be sold to the Initial Purchasers without being
registered under the Securities Act of 1933, as amended (the "Securities Act"),
in reliance upon an exemption therefrom. The Company and the Parent Guarantor
have prepared a preliminary offering memorandum dated May 28, 2003 (the
"Preliminary Offering Memorandum") and will prepare an offering memorandum dated
the date hereof (the "Offering Memorandum") setting forth information concerning
the Company, the Parent Guarantor and the Securities. Copies of the Preliminary
Offering Memorandum have been, and copies of the Offering Memorandum will be,
delivered by the Company and the Parent Guarantor to the Initial Purchasers
pursuant to the terms of this Agreement. The Company and the Parent Guarantor
hereby confirm that they have
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authorized the use of the Preliminary Offering Memorandum and the Offering
Memorandum in connection with the offering and resale of the Securities by the
Initial Purchasers in the manner contemplated by this Agreement. Capitalized
terms used but not defined herein shall have the meanings given to such terms in
the Offering Memorandum. References herein to the Preliminary Offering
Memorandum and the Offering Memorandum shall be deemed to refer to and include
any document incorporated by reference therein.
Holders of the Securities (including the Initial Purchasers and their
direct and indirect transferees) will be entitled to the benefits of a
Registration Rights Agreement, to be dated the Closing Date (as defined below)
and substantially in the form attached hereto as Exhibit A (the "Registration
Rights Agreement"), pursuant to which the Company and the Guarantors will agree
to file one or more registration statements with the Securities and Exchange
Commission (the "Commission") providing for the registration under the
Securities Act (the "Exchange Offer Registration Statement") of the Securities
or the Exchange Securities referred to (and as defined) in the Registration
Rights Agreement.
The Company and the Guarantors hereby confirm their agreement with the
several Initial Purchasers concerning the purchase and resale of the Securities,
as follows:
1. Purchase and Resale of the Securities. (a) The Company agrees
to issue and sell the Securities to the several Initial Purchasers as provided
in this Agreement, and each Initial Purchaser, on the basis of the
representations, warranties and agreements set forth herein and subject to the
conditions set forth herein, agrees, severally and not jointly, to purchase from
the Company the respective principal amount of Securities set forth opposite
such Initial Purchaser's name in Schedule 1 hereto at a price equal to 94.955%
of the principal amount thereof. The Company will not be obligated to deliver
any of the Securities except upon payment for all the Securities to be purchased
as provided herein.
(b) The Company understands that the Initial Purchasers intend to
offer the Securities for resale on the terms set forth in the Offering
Memorandum. Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) it is a qualified institutional buyer within the
meaning of Rule 144A under the Securities Act (a "QIB") and an
accredited investor within the meaning of Rule 501(a) under the
Securities Act;
(ii) it has not solicited offers for, or offered or sold,
and will not solicit offers for, or offer or sell, the Securities by
means of any form of general solicitation or general advertising within
the meaning of Rule 502(c) of Regulation D under the Securities Act
("Regulation D") or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act; and
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(iii) it has not solicited offers for, or offered or sold,
and will not solicit offers for, or offer or sell, the Securities as
part of their initial offering except:
(A) within the United States to persons whom it
reasonably believes to be QIBs in transactions pursuant to
Rule 144A under the Securities Act ("Rule 144A") and in
connection with each such sale, it has taken or will take
reasonable steps to ensure that the purchaser of the
Securities is aware that such sale is being made in reliance
on Rule 144A; or
(B) in accordance with the restrictions set
forth in Annex A hereto.
(c) Each Initial Purchaser acknowledges and agrees that the
Company and the Guarantors, for purposes of the opinions and reliance letter to
be delivered to the Initial Purchasers pursuant to Sections 5(h), 5(i), 5(j) and
5(k), counsel for the Company and the Guarantors and counsel for the Initial
Purchasers, respectively, may rely upon the accuracy of the representations and
warranties of the Initial Purchasers, and compliance by the Initial Purchasers
with their agreements, contained in paragraph (b) above (including Annex A
hereto), and each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial
Purchasers may offer and sell Securities to or through any affiliate of an
Initial Purchaser and that any such affiliate may offer and sell Securities
purchased by it to or through any Initial Purchaser, provided that any such
offers or sales shall be made in accordance with the provisions of this
Agreement.
2. Payment and Delivery. (a) Payment for and delivery of the
Securities will be made at the offices of Simpson Thacher & Bartlett LLP at 9:00
A.M., New York City time, on June 13, 2003, or at such other time or place on
the same or such other date, not later than the fifth business day thereafter,
as the Representative and the Company may agree upon in writing. The time and
date of such payment and delivery is referred to herein as the "Closing Date".
(b) Payment for the Securities shall be made by wire transfer in
immediately available funds to the account(s) specified by the Company to the
Representative against delivery to the nominee of The Depository Trust Company,
for the account of the Initial Purchasers, of one or more global notes
representing the Securities (collectively, the "Global Note"), with any transfer
taxes payable in connection with the sale of the Securities duly paid by the
Company. The Global Note will be made available for inspection by the
Representative not later than 1:00 P.M., New York City time, on the business day
prior to the Closing Date.
3. Representations and Warranties of the Company and the
Guarantors. The Company and the Guarantors jointly and severally represent and
warrant to each Initial Purchaser that:
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(a) Offering Memorandum. The Preliminary Offering Memorandum, as
of its date, did not, and the Offering Memorandum, in the form first used by the
Initial Purchasers to confirm sales of the Securities and as of the Closing
Date, will not, contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company and the Guarantors make no
representation or warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any Initial
Purchaser furnished to the Company and the Guarantors in writing by such Initial
Purchaser through the Representative expressly for use in the Preliminary
Offering Memorandum and the Offering Memorandum.
(b) Incorporated Documents. The documents incorporated by
reference in the Preliminary Offering Memorandum and the Offering Memorandum or
any further amendment or supplement thereto (the "Incorporated Documents"), when
filed with the Commission, conformed or will conform, as the case may be, in all
material respects to the requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and the rules and regulations of the Commission
thereunder, and did not and will not, as the case may be, contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
representation and warranty set forth in this paragraph (b) is given on the
basis that any statement contained in an Incorporated Document shall be deemed
not to be contained in the Offering Memorandum if the statement has been
modified or superseded by any statement in a subsequently filed Incorporated
Document or in the Offering Memorandum.
(c) Financial Statements. The financial statements and the related
notes thereto included in or incorporated by reference into the Preliminary
Offering Memorandum and the Offering Memorandum present fairly the financial
position of the Parent Guarantor, the Company and their subsidiaries as of the
dates indicated and the results of their operations and the changes in their
cash flows for the periods specified; such financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods covered thereby; and the other
financial information included in or incorporated by reference into the
Preliminary Offering Memorandum and the Offering Memorandum has been derived
from the accounting records of the Company and its subsidiaries and presents
fairly the information shown thereby.
(d) No Material Adverse Change. Since the date of the most recent
financial statements of the Parent Guarantor and the Company included in or
incorporated by reference into the Preliminary Offering Memorandum and the
Offering Memorandum (excluding any amendment or supplement thereto or any
document filed with the Commission after the date hereof and incorporated by
reference herein), (i) there has not been any material change in the capital
stock or long-term debt of the Parent Guarantor, the Company or any of their
subsidiaries, or any dividend or distribution of any kind declared, set aside
for payment, paid or made by the Parent Guarantor (other than dividends on the
Tower Automotive Capital Trust 6 3/4% Trust Convertible Securities), the Company
or any of their subsidiaries on any class of capital stock, or
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any material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, properties, management, financial
position, results of operations or prospects of the Parent Guarantor and its
subsidiaries taken as a whole; (ii) neither the Parent Guarantor, the Company
nor any of their subsidiaries has entered into any transaction or agreement that
is material to the Parent Guarantor and its subsidiaries taken as a whole or
incurred any liability or obligation, direct or contingent, that is material to
the Parent Guarantor and its subsidiaries taken as a whole; and (iii) neither
the Parent Guarantor, the Company nor any of their subsidiaries has sustained
any loss or interference with their business from fire, explosion, flood or
other calamity that is material to the Parent Guarantor and its subsidiaries
taken as a whole, whether or not covered by insurance, or from any labor
disturbance or dispute or any action, order or decree of any court or arbitrator
or governmental or regulatory authority, except in each case as otherwise
disclosed in the Offering Memorandum.
(e) Organization and Good Standing. The Parent Guarantor, the
Company and each of their respective subsidiaries have been duly organized and
are validly existing and in good standing under the laws of their respective
jurisdictions of organization, are duly qualified to do business and are in good
standing in each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires such
qualification, and have all power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they are engaged,
except where the failure to be so qualified or have such power or authority
would not, individually or in the aggregate, have a material adverse effect on
the business, properties, management, financial position, results of operations
or prospects of the Parent Guarantor and its subsidiaries taken as a whole or on
the performance by the Company and the Guarantors of their obligations under the
Securities and the Guarantees (a "Material Adverse Effect"). The Company does
not own or control, directly or indirectly, any corporation, association or
other entity other than the subsidiaries listed in Schedule 2 of this Agreement
and the identified subsidiaries are the only significant subsidiaries of the
Company. The subsidiaries listed in Schedule 3 to this Agreement are the
guarantors of obligations under our Senior Credit Agreement (as defined in the
Offering Memorandum) and will issue Guarantees under the Indenture.
(f) Capitalization. The Parent Guarantor has the capitalization as
set forth under the heading "Actual, as of March 31, 2003" in the Preliminary
Offering Memorandum and the Offering Memorandum under the heading
"Capitalization"; and all the outstanding shares of capital stock or other
equity interests of the Parent Guarantor, the Company and each of their
subsidiaries have been duly and validly authorized and issued, are fully paid
and non-assessable (except, in the case of any foreign subsidiary, for
directors' qualifying shares and except as otherwise described in the Offering
Memorandum) and, except as set forth in the Offering Memorandum, are owned
directly or indirectly by the Parent Guarantor and the Company, free and clear
of any lien, charge, encumbrance, security interest, restriction on voting or
transfer or any other claim of any third party that is material to the Parent
Guarantor and its subsidiaries taken as a whole.
(g) Due Authorization. The Company and each of the Guarantors have
full right, power and authority to execute and deliver this Agreement, the
Securities, the Indenture (including each Guarantee set forth therein), the
Exchange Securities, and the
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Registration Rights Agreement (collectively, the "Transaction Documents") and to
perform their respective obligations hereunder and thereunder; and all action
required to be taken for the due and proper authorization, execution and
delivery of each of the Transaction Documents and the consummation of the
transactions contemplated thereby has been duly and validly taken.
(h) The Indenture. The Indenture has been duly authorized by the
Company and each of the Guarantors and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will constitute a
valid and legally binding agreement of the Company and each of the Guarantors
enforceable against the Company and each of the Guarantors in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability (collectively,
the "Enforceability Exceptions"); and on the Closing Date, the Indenture will
conform in all material respects to the requirements of the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), and the rules and regulations
of the Commission applicable to an indenture that is qualified thereunder.
(i) The Notes and the Guarantees. The Notes have been duly
authorized by the Company and, when duly executed, authenticated, issued and
delivered as provided in the Indenture and paid for as provided herein, will be
duly and validly issued and outstanding and will constitute valid and legally
binding obligations of the Company enforceable against the Company in accordance
with their terms, subject to the Enforceability Exceptions, and will be entitled
to the benefits of the Indenture; and the Guarantees have been duly authorized
by each of the Guarantors and, when the Notes have been duly executed,
authenticated, issued and delivered as provided in the Indenture and paid for as
provided herein, will be valid and legally binding obligations of each of the
Guarantors, enforceable against each of the Guarantors in accordance with their
terms, subject to the Enforceability Exceptions, and will be entitled to the
benefits of the Indenture.
(j) The Exchange Securities. On the Closing Date, the unissued
Exchange Securities (including the related guarantees) will have been duly
authorized by the Company and each of the Guarantors and, when duly executed,
authenticated, issued and delivered as contemplated by the Registration Rights
Agreement, will be duly and validly issued and outstanding and will constitute
valid and legally binding obligations of the Company, as issuer, and each of the
Guarantors, as guarantor, enforceable against the Company and each of the
Guarantors in accordance with their terms, subject to the Enforceability
Exceptions, and will be entitled to the benefits of the Indenture.
(k) Purchase and Registration Rights Agreements. This Agreement
has been duly authorized, executed and delivered by the Company and each of the
Guarantors; and the Registration Rights Agreement has been duly authorized by
the Company and each of the Guarantors and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will constitute a
valid and legally binding agreement of the Company and each of the Guarantors
enforceable against the Company and each of the Guarantors in accordance with
its terms, subject to the Enforceability Exceptions, and except that rights to
indemnity and contribution thereunder may be limited by applicable law and
public policy.
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(l) Third Amendment to the Credit Agreement. The Third Amendment
to the Credit Agreement has been duly authorized and as of the Closing Date,
will be executed and delivered by the Company and the Subsidiary Guarantors. The
execution, delivery and performance of the Credit Agreement and the related
security documents which will be entered into with respect to collateral to
secure term loans and permanent letters of credit issued under the Senior Credit
Agreement and the security documents which may be entered into to secure amounts
drawn under the revolving credit commitment under the Credit Agreement will not
result in the creation of a lien to secure obligations under the Indenture dated
as of July 25, 2000 relating to the E150,000,000 aggregate principal amount of
9.25% Senior Notes due 2010.
(m) Descriptions of the Transaction Documents. Each Transaction
Document conforms in all material respects to the description thereof contained
in the Offering Memorandum.
(n) No Violation or Default. Neither the Parent Guarantor, the
Company nor any of their subsidiaries is (i) in violation of its charter or
by-laws or similar organizational documents; (ii) in default, and no event has
occurred that, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Parent Guarantor, the Company or any of
their subsidiaries is a party or by which the Parent Guarantor, the Company or
any of their subsidiaries is bound or to which any of the property or assets of
the Parent Guarantor, the Company or any of their subsidiaries is subject; or
(iii) except with respect to matters pertaining to the Sarbanes-Oxley Act of
2002 which is expressly covered in clause (nn) below, in violation of any law or
statute or any judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except, in the case of clauses (ii) and
(iii) above, for any such default or violation that would not, individually or
in the aggregate, have a Material Adverse Effect.
(o) No Conflicts. The execution, delivery and performance by the
Company and each of the Guarantors of each of the Transaction Documents to which
each is a party, the issuance and sale of the Securities (including the
Guarantees) and the performance by the Company and each of the Guarantors of
their respective obligations hereunder and thereunder and the consummation of
the transactions contemplated by the Transaction Documents will not (i) conflict
with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Parent Guarantor, the
Company or any of their subsidiaries pursuant to, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the Parent
Guarantor, the Company or any of their subsidiaries is a party or by which the
Parent Guarantor, the Company or any of their subsidiaries is bound or to which
any of the property or assets of the Parent Guarantor, the Company or any of
their subsidiaries is subject, (ii) result in any violation of the provisions of
the charter or by-laws or similar organizational documents of the Parent
Guarantor, the Company or any of their subsidiaries or (iii) result in the
violation of any law or statute or any judgment, order, rule or regulation of
any court or arbitrator or governmental or regulatory authority, except, in the
case of clauses (i) and (iii) above, for any such conflict, breach or
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violation that would not, individually or in the aggregate, have a Material
Adverse Effect.
(p) No Consents Required. No consent, approval, authorization,
order, registration or qualification of or with any court or arbitrator or
governmental or regulatory authority is required for the execution, delivery and
performance by the Parent Guarantor, the Company or any of their subsidiaries of
each of the Transaction Documents to which each is a party, the issuance and
sale of the Securities (including the Guarantees) and compliance by the Parent
Guarantor, the Company and each of their subsidiaries with the terms thereof and
the consummation of the transactions contemplated by the Transaction Documents,
except for such consents, approvals, authorizations, orders and registrations or
qualifications as may be required (i) that shall have been obtained or made
prior to the Closing Date pursuant to the Credit Agreement, (ii) under
applicable state securities laws in connection with the purchase and resale of
the Securities by the Initial Purchasers and (iii) with respect to the Exchange
Securities (including the related guarantees) under the Securities Act and
applicable state securities laws as contemplated by the Registration Rights
Agreement and (iv) that if not obtained or made, would not, individually or in
the aggregate, have a Material Adverse Effect or materially impair the ability
of the Guarantors to perform their respective obligations under the Transaction
Documents.
(q) Legal Proceedings. Except as described in the Offering
Memorandum, there are no legal, governmental or regulatory investigations,
actions, suits or proceedings pending to which the Parent Guarantor, the Company
or any of their subsidiaries is or may be a party or to which any property of
the Parent Guarantor, the Company or any of their subsidiaries is or may be the
subject that, individually or in the aggregate, if determined adversely to the
Parent Guarantor, the Company or any of their subsidiaries, could reasonably be
expected to have a Material Adverse Effect; and, except as described in the
Offering Memorandum, no such investigations, actions, suits or proceedings are
threatened or, to the best knowledge of the Company and each of the Guarantors,
contemplated by any governmental or regulatory authority or threatened by
others.
(r) Independent Auditors. Deloitte & Touche LLP ("Deloitte &
Touche") is and Arthur Andersen LLP ("Arthur Andersen") was, when serving as the
Parent Guarantor and the Company's independent auditors, independent certified
public accountants with respect to the Parent Guarantor, the Company and their
subsidiaries within the meaning of Rule 101 of the Code of Professional Conduct
of the American Institute of Certified Public Accountants and its
interpretations and rulings thereunder. The historical financial statements
(including the related notes) contained in, and incorporated by reference into,
the Offering Memorandum comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the related
published rules and regulations; such financial statements have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods covered thereby and fairly present the financial position
of the entities purported to be covered thereby at the respective dates
indicated and the results of their operations and their cash flows for the
respective periods indicated; and the financial information contained in the
Offering Memorandum under the headings "Summary--Summary historical consolidated
financial data," "Capitalization,"
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"Selected historical financial data" and "Management's discussion and analysis
of financial condition and results of operations," and the financial information
contained in the Parent Guarantor's Proxy Statement for Annual Meeting of
Shareholders dated April 24, 2003, incorporated by reference into the Offering
Memorandum, under the heading "Executive Compensation" are derived from the
accounting records of the Parent Guarantor, the Company and their subsidiaries
and fairly present the information purported to be shown thereby. The other
historical financial and statistical information and data included in, and
incorporated by reference into, the Offering Memorandum are, in all material
respects, fairly presented.
(s) Title to Real and Personal Property. Except as set forth in
the Offering Memorandum, the Parent Guarantor, the Company and their
subsidiaries have good and marketable title in fee simple to, or have valid
rights to lease or otherwise use, all items of real and personal property that
are material to the respective businesses of the Parent Guarantor, the Company
and their subsidiaries, in each case free and clear of all liens, encumbrances,
claims and defects and imperfections of title except those that (i) do not
materially interfere with the use made and proposed to be made of such property
by the Parent Guarantor, the Company and their subsidiaries or (ii) could not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.
(t) Title to Intellectual Property. The Parent Guarantor, the
Company and their subsidiaries own or possess adequate rights to use all
material patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations, copyrights, licenses and
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures) necessary for
the conduct of their respective businesses; and the conduct of their respective
businesses will not conflict in any material respect with any such rights of
others, and the Parent Guarantor, the Company and their subsidiaries have not
received any notice of any claim of infringement of or conflict with any such
rights of others, other than such conflicts that could not reasonably be
expected to result in a Material Adverse Effect.
(u) Investment Company Act. None of the Parent Guarantor, the
Company nor any of their subsidiaries is, and after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof
as described in the Offering Memorandum none of them will be, an "investment
company" or an entity "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, and the rules and regulations
of the Commission thereunder (collectively, "Investment Company Act").
(v) Taxes. The Parent Guarantor, the Company and their
subsidiaries have paid all federal, state, local and foreign taxes and filed all
tax returns required to be paid or filed through the date hereof (except for
such taxes that are not yet delinquent or that are being contested in good faith
and by proper proceedings, and against which adequate reserves are being
maintained in accordance with generally accepted accounting principles); and
except as otherwise disclosed in the Offering Memorandum, there is no tax
deficiency that has been, or could reasonably be expected to be, asserted
against the Parent Guarantor, the Company or any of their subsidiaries or any of
their respective properties or assets.
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(w) Licenses and Permits. The Parent Guarantor, the Company and
their subsidiaries possess all licenses, certificates, permits and other
authorizations issued by, and have made all declarations and filings with, the
appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective
properties or the conduct of their respective businesses as described in the
Offering Memorandum, except where the failure to possess or make the same would
not, individually or in the aggregate, have a Material Adverse Effect; and
except as described in the Offering Memorandum, neither the Parent Guarantor,
the Company nor any of their subsidiaries has received notice of any revocation
or modification of any such license, certificate, permit or authorization or has
any reason to believe that any such license, certificate, permit or
authorization will not be renewed in the ordinary course.
(x) No Labor Disputes. No labor disturbance by or dispute with
employees of the Parent Guarantor, the Company or any of their subsidiaries
exists or, to the best knowledge of the Company and each of the Guarantors, is
contemplated or threatened that could reasonably be expected to result in a
Material Adverse Effect.
(y) Compliance With Environmental Laws. The Parent Guarantor, the
Company and their subsidiaries (i) are in compliance with any and all applicable
federal, state, local and foreign laws, rules, regulations, decisions and orders
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, "Environmental Laws"); (ii) have received and are in compliance
with all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses; and (iii) have not
received notice of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, except in any such case for any such failure
to comply with, or failure to receive required permits, licenses or approvals,
or liability, as would not, individually or in the aggregate, have a Material
Adverse Effect.
(z) Compliance With ERISA. Each employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), that is maintained, administered or contributed to by the
Parent Guarantor, the Company or any of their affiliates for employees or former
employees of the Parent Guarantor, the Company and their affiliates has been
maintained in material compliance with its terms and the requirements of any
applicable statutes, orders, rules and regulations, including but not limited to
ERISA and the Internal Revenue Code of 1986, as amended (the "Code"); no
prohibited transaction, within the meaning of Section 406 of ERISA or Section
4975 of the Code, has occurred with respect to any such plan excluding
transactions effected pursuant to a statutory or administrative exemption; and
for each such plan that is subject to the funding rules of Section 412 of the
Code or Section 302 of ERISA, no "accumulated funding deficiency" as defined in
Section 412 of the Code has been incurred, whether or not waived, and, except as
otherwise disclosed in the Offering Memorandum, the fair market value of the
assets of each such plan (excluding for these purposes accrued but unpaid
contributions) exceeds the present value of all benefits accrued under such plan
determined using reasonable actuarial assumptions.
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(aa) Accounting Controls. The Parent Guarantor, the Company and
their subsidiaries maintain systems of internal accounting controls sufficient
to provide reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(bb) Insurance. The Parent Guarantor, the Company and their
subsidiaries have insurance covering their respective properties, operations,
personnel and businesses, including business interruption insurance, which
insurance is in amounts and insures against such losses and risks as the
Company's management reasonably believes are adequate to protect the Parent
Guarantor, the Company and their subsidiaries and their respective businesses;
and none of the Parent Guarantor, the Company or any of their subsidiaries has
(i) received notice from any insurer or agent of such insurer that capital
improvements or other expenditures are required or necessary to be made in order
to continue such insurance or (ii) any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage at a cost that would not have a Material Adverse
Effect from similar insurers, as may be necessary to continue its business.
(cc) No Unlawful Payments. None of the Parent Guarantor, the
Company or any of their subsidiaries or, to the best knowledge of the Company
and each of the Guarantors, any director, officer, agent, employee or other
person associated with or acting on behalf of the Parent Guarantor, the Company
or any of their subsidiaries has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; (iii)
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment.
(dd) Solvency. On and immediately after the Closing Date, the
Company (after giving effect to the issuance of the Securities and the other
transactions related thereto as described in the Offering Memorandum) will be
Solvent. As used in this paragraph, the term "Solvent" means, with respect to a
particular date, that on such date (i) the present fair market value (or present
fair saleable value) of the assets of the Company is not less than the total
amount required to pay the liabilities of the Company on its total existing
debts and liabilities (including contingent liabilities) as they become absolute
and matured; (ii) the Company is able to realize upon its assets and pay its
debts and other liabilities, contingent obligations and commitments as they
mature and become due in the normal course of business; (iii) assuming
consummation of the issuance of the Securities as contemplated by this Agreement
and the Offering Memorandum, the Company is not incurring debts or liabilities
beyond its ability to pay as such debts and liabilities mature; (iv) the Company
is not engaged in any business or transaction, and does not propose to engage in
any business or transaction, for which its property would constitute
unreasonably small capital after giving due consideration to the prevailing
practice in the
12
industry in which the Company is engaged; and (v) the Company is not a defendant
in any civil action that would result in a judgment that the Company is or would
become unable to satisfy.
(ee) No Restrictions on Restricted Subsidiaries. No Restricted
Subsidiary of the Company is currently prohibited, directly or indirectly, under
any agreement or other instrument to which it is a party or is subject, from
paying any dividends to the Company, from making any other distribution on such
subsidiary's capital stock, from repaying to the Company any loans or advances
to such subsidiary from the Company or from transferring any of such
subsidiary's properties or assets to the Company or any other subsidiary of the
Company other than those existing on the date hereof under (i) Section 7.11 of
the Credit Agreement, (ii) any agreements under which the Company's Foreign
Subsidiaries have incurred indebtedness that in the aggregate do not exceed $38
million, (iii) any restrictions on the transfer of properties, provided that
such transfer will not result in a Material Adverse Effect, and (iv) those
permitted under in the Offering Memorandum, in clauses (iv), (v), (vii), (ix)
and (x) under the heading "Certain covenants--Limitation on distributions from
restricted subsidiaries", provided further that these exceptions shall not
materially impair the ability of the Company or any of its subsidiaries to
perform its obligations under the Notes and the Indenture.
(ff) No Broker's Fees. None of the Parent Guarantor, the
Company or any of their subsidiaries is a party to any contract, agreement or
understanding with any person (other than this Agreement) that would give rise
to a valid claim against any of them or any Initial Purchaser for a brokerage
commission, finder's fee or like payment in connection with the offering and
sale of the Securities, except as disclosed in the Offering Memorandum.
(gg) Rule 144A Eligibility. On the Closing Date, the Securities
will not be of the same class as securities listed on a national securities
exchange registered under Section 6 of the Exchange Act or quoted in an
automated inter-dealer quotation system; and the Offering Memorandum, as of its
date, will contain all the information that, if requested by a prospective
purchaser of the Securities, would be required to be provided to such
prospective purchaser pursuant to Rule 144A(d)(4) under the Securities Act.
(hh) No Integration. Neither the Company nor any of its affiliates
(as defined in Rule 501(b) of Regulation D) has, directly or through any agent,
sold, offered for sale, solicited offers to buy or otherwise negotiated in
respect of, any security (as defined in the Securities Act), that is or will be
integrated with the sale of the Securities in a manner that would require
registration of the Securities under the Securities Act.
(ii) No General Solicitation or Directed Selling Efforts. None of
the Company or any of its affiliates or any other person acting on its or their
behalf (other than the Initial Purchasers, as to which no representation is
made) has (i) solicited offers for, or offered or sold, the Securities by means
of any form of general solicitation or general advertising within the meaning of
Rule 502(c) of Regulation D or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act or (ii) engaged in any
directed selling efforts within the meaning of Regulation S under the Securities
Act ("Regulation S"), and all such persons have complied with the offering
restrictions requirement of Regulation S.
13
(jj) Securities Law Exemptions. Assuming the accuracy of the
representations and warranties of the Initial Purchasers contained in Section
1(b) (including Annex A hereto) and their compliance with their agreements set
forth therein, it is not necessary, in connection with the issuance and sale of
the Securities to the Initial Purchasers and the offer, resale and delivery of
the Securities by the Initial Purchasers in the manner contemplated by this
Agreement and the Offering Memorandum, to register the Securities under the
Securities Act or to qualify the Indenture under the Trust Indenture Act.
(kk) No Stabilization. Neither the Company nor any of the
Guarantors has taken, directly or indirectly, any action designed to or that
could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Securities.
(ll) Margin Rules. Neither the issuance, sale and delivery of the
Securities nor the application of the proceeds thereof by the Company as
described in the Offering Memorandum will violate Regulation T, U or X of the
Board of Governors of the Federal Reserve System or any other regulation of such
Board of Governors.
(mm) Forward-Looking Statements. No forward-looking statement
(within the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act) contained in or incorporated by reference into the Offering
Memorandum has been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
(nn) Statistical and Market Data. Nothing has come to the attention
of the Company that has caused the Company to believe that the statistical and
market-related data included in or incorporated by reference into the Offering
Memorandum is not based on or derived from sources that are reliable and
accurate in all material respects.
(oo) Sarbanes-Oxley Act of 2002. The Parent Guarantor has complied
with the currently applicable provisions of the Sarbanes-Oxley Act of 2002, and
to the best of the Parent Guarantor's knowledge, the Parent Guarantor's
directors and officers, in their capacities as such, have complied with the
currently applicable provisions of the Sarbanes- Oxley Act of 2002.
4. Further Agreements of the Company and the Guarantors. The
Company, and to the extent expressly referred to in the paragraphs below, each
of the Guarantors jointly and severally covenant and agree with each Initial
Purchaser that:
(a) Delivery of Copies. At any time prior to the completion of the
distribution by the Initial Purchasers of the Securities, the Company will
deliver to the Initial Purchasers, without charge, as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum (including all
amendments and supplements thereto) as the Representative may reasonably
request.
(b) Amendments or Supplements. Before making or distributing any
amendment or supplement to the Preliminary Offering Memorandum or the Offering
Memorandum or filing with the Commission any document that will be incorporated
by
14
reference therein prior to the completion of the initial offering of the
Securities by the Initial Purchasers, the Company will furnish to the
Representative and counsel for the Initial Purchasers a copy of the proposed
amendment or supplement or document to be incorporated by reference therein for
review, and will not distribute any such proposed amendment or supplement or
file any such document with the Commission to which the Representative
reasonably objects.
(c) Notice to the Representative. The Company will advise the
Representative promptly, and confirm such advice in writing, (i) of the issuance
by any governmental or regulatory authority of any order preventing or
suspending the use of the Preliminary Offering Memorandum or the Offering
Memorandum or the initiation or threatening of any proceeding for that purpose;
(ii) of the occurrence of any event at any time prior to the completion of the
initial offering of the Securities by the Initial Purchasers as a result of
which the Offering Memorandum as then amended or supplemented would include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
existing when the Offering Memorandum is delivered to a purchaser, not
misleading; and (iii) of the receipt by the Company of any notice with respect
to any suspension of the qualification of the Securities for offer and sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose; and the Company will use its reasonable best efforts to prevent the
issuance of any such order preventing or suspending the use of the Preliminary
Offering Memorandum or the Offering Memorandum or suspending any such
qualification of the Securities and, if any such order is issued, will obtain as
soon as possible the withdrawal thereof.
(d) Ongoing Compliance of the Offering Memorandum. If at any time
prior to the completion of the initial offering of the Securities by the Initial
Purchasers (i) any event shall occur or condition shall exist as a result of
which the Offering Memorandum as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
existing when the Offering Memorandum is delivered to a purchaser, not
misleading or (ii) it is necessary to amend or supplement the Offering
Memorandum to comply with law, the Company will immediately notify the Initial
Purchasers thereof and forthwith prepare and, subject to paragraph (b) above,
furnish to the Initial Purchasers such amendments or supplements to the Offering
Memorandum (or any document to be filed with the Commission and incorporated by
reference therein) as may be necessary so that the statements in the Offering
Memorandum as so amended or supplemented (or including such document to be
incorporated by reference therein) will not, in the light of the circumstances
existing when the Offering Memorandum is delivered to a purchaser, be misleading
or so that the Offering Memorandum will comply with law.
(e) Blue Sky Compliance. The Company will cooperate with the
Initial Purchasers and their counsel to qualify the Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Representative shall reasonably request and will continue such qualifications in
effect so long as reasonably required for the offering and resale of the
Securities; provided that neither the Company nor any of the Guarantors shall be
required to (i) qualify as a foreign corporation or other entity or as a dealer
in securities in any such jurisdiction where it would not otherwise be
15
required to so qualify, (ii) file any general consent to service of process in
any such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject.
(f) Clear Market. During the period from the date hereof through
and including the date that is 90 days after the date hereof, the Parent
Guarantor, the Company and each of their subsidiaries will not, without the
prior written consent of the Representative, offer, sell, contract to sell or
otherwise dispose of any debt securities (other than loans under the senior
credit facility described in the Offering Memorandum and the Exchange
Securities) issued or guaranteed by the Company or any of the Guarantors and
having a tenor of more than one year.
(g) Use of Proceeds. The Company will apply the net proceeds from
the sale of the Securities as described in the Offering Memorandum under the
heading "Use of proceeds".
(h) Supplying Information. While the Securities remain outstanding
and are "restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Company and each of the Guarantors will, during any period
in which the Company is not subject to and in compliance with Section 13 or
15(d) of the Exchange Act, furnish to holders of the Securities and prospective
purchasers of the Securities designated by such holders, upon the request of
such holders or such prospective purchasers, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(i) PORTAL and DTC. The Company will assist the Initial Purchasers
in arranging for the Securities to be designated Private Offerings, Resales and
Trading through Automated Linkages ("PORTAL") Market securities in accordance
with the rules and regulations adopted by the National Association of Securities
Dealers, Inc. ("NASD") relating to trading in the PORTAL Market and for the
Securities to be eligible for clearance and settlement through The Depository
Trust Company ("DTC").
(j) No Resales by the Company. Until the issuance of the Exchange
Securities, the Company will not, and will not permit any of its affiliates (as
defined in Rule 144 under the Securities Act) to, resell any of the Securities
that have been acquired by any of them, except for Securities purchased by the
Company or any of its affiliates and resold in a transaction registered under
the Securities Act.
(k) No Integration. Neither the Company nor any of its affiliates
(as defined in Rule 501(b) of Regulation D) will, directly or through any agent,
sell, offer for sale, solicit offers to buy or otherwise negotiate in respect
of, any security (as defined in the Securities Act), that is or will be
integrated with the sale of the Securities in a manner that would require
registration of the Securities under the Securities Act.
(l) No General Solicitation or Directed Selling Efforts. None of
the Company or any of its affiliates or any other person acting on its or their
behalf (other than the Initial Purchasers, as to which no covenant is given)
will (i) solicit offers for, or offer or sell, the Securities by means of any
form of general solicitation or general advertising within the meaning of Rule
502(c) of Regulation D or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act or
16
(ii) engage in any directed selling efforts within the meaning of Regulation S,
and all such persons will comply with the offering restrictions requirement of
Regulation S.
(m) No Stabilization. Neither the Company nor any of the
Guarantors will take, directly or indirectly, any action designed to or that
could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Securities.
5. Conditions of Initial Purchasers' Obligations. The obligation
of each Initial Purchaser to purchase Securities on the Closing Date as provided
herein is subject to the performance by the Company and each of the Guarantors
of their respective covenants and other obligations hereunder and to the
following additional conditions:
(a) Representations and Warranties. The representations and
warranties of the Company and the Guarantors contained herein shall be true and
correct on the date hereof and on and as of the Closing Date; and the statements
of the Company, the Guarantors and their respective officers made in any
certificates delivered pursuant to this Agreement shall be true and correct on
and as of the Closing Date.
(b) No Downgrade. Subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the rating accorded the
Securities or any other debt securities or preferred stock issued or guaranteed
by the Company or any of the Guarantors by any "nationally recognized
statistical rating organization", as such term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act; and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, or has changed its outlook with respect to, its rating of the Securities
or of any other debt securities or preferred stock issued or guaranteed by the
Company or any of the Guarantors (other than an announcement with positive
implications of a possible upgrading).
(c) No Material Adverse Change. Subsequent to the execution and
delivery of this Agreement, no event or condition of a type described in Section
3(d) hereof shall have occurred or shall exist that is material and adverse,
which event or condition is not described in the Offering Memorandum (excluding
any amendment or supplement thereto or any document filed with the Commission
after the date hereof and incorporated by reference therein) and the effect of
which in the judgment of the Representative makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Securities on
the terms and in the manner contemplated by this Agreement and the Offering
Memorandum.
(d) Comfort Letters. On the date of this Agreement and on the
Closing Date, Deloitte & Touche shall have furnished to the Representative, at
the request of the Company, letters, dated the respective dates of delivery
thereof and addressed to the Initial Purchasers, in form and substance
reasonably satisfactory to the Representative, containing statements and
information of the type customarily included in accountants' "comfort letters"
to underwriters with respect to the financial statements and certain financial
information contained in the Preliminary Offering Memorandum and the Offering
Memorandum; provided that the letter delivered on the Closing Date shall use a
"cut-off" date no more than three business days prior to the Closing Date.
17
(e) Officer's Certificate. The Company, the Parent Guarantor and
each of their subsidiaries shall have furnished to the Initial Purchasers a
certificate in form and substance reasonably satisfactory to the Initial
Purchasers, to the effect set forth in Annex D hereto, dated the Closing Date,
of its Chief Executive Officer and Chief Financial Officer.
(f) Management Comfort Letter. The Parent Guarantor shall have
furnished to the Initial Purchasers a certificate, dated the date hereof, of its
Chief Executive Officer and Chief Financial Officer, with respect to financial
information relating to fiscal years audited by Arthur Andersen, providing
"Management Comfort" with respect to such information to the extent Deloitte &
Touche is unable to provide such comfort, in form and substance reasonably
satisfactory to the Initial Purchasers, to the effect set forth in Annex E
hereto.
(g) The Parent Guarantor shall have furnished to the Initial
Purchasers a certificate, dated the Closing Date, of its Chief Executive Officer
and its Chief Financial Officer, in form and substance reasonably satisfactory
to the Initial Purchasers, to the effect set forth in Annex F hereto.
(h) Opinion of Special Counsel for the Parent Guarantor and the
Company. Kirkland & Ellis, special counsel for the Parent Guarantor, the Company
and their subsidiaries, shall have furnished to the Representative, at the
request of the Company, their written opinion, dated the Closing Date and
addressed to the Initial Purchasers, in form and substance reasonably
satisfactory to the Representative, to the effect set forth in Annex B hereto.
(i) Opinion of Counsel for the Parent Guarantor and the Company.
Varnum, Riddering, Schmidt & Howlett LLP, counsel for the Parent Guarantor, the
Company and their subsidiaries, shall have furnished to the Representative, at
the request of the Company, their written opinion, dated the Closing Date and
addressed to the Initial Purchasers, in form and substance reasonably
satisfactory to the Representative, to the effect set forth in Annex C hereto.
(j) Opinion of Counsel for the Initial Purchasers. The
Representative shall have received on and as of the Closing Date an opinion of
Simpson Thacher & Bartlett LLP, counsel for the Initial Purchasers, with respect
to such matters as the Representative may reasonably request, and such counsel
shall have received such documents and information as they may reasonably
request to enable them to pass upon such matters.
(k) Reliance Letter of Special Counsel for the Parent Guarantor
and the Company. Kirkland & Ellis, special counsel for the Parent Guarantor, the
Company and their subsidiaries, shall have furnished to the Representative, at
the request of the Company, their reliance letter with respect to their opinion,
to be delivered to the banks in connection with the Third Amendment to the
Credit Agreement, dated the Closing Date and addressed to the Initial
Purchasers, in form and substance reasonably satisfactory to the Representative.
18
(l) No Legal Impediment to Issuance. No action shall have been
taken and no statute, rule, regulation or order shall have been enacted, adopted
or issued by any federal, state or foreign governmental or regulatory authority
that would, as of the Closing Date, prevent the issuance or sale of the
Securities or the issuance of the Guarantees; and no injunction or order of any
federal, state or foreign court shall have been issued that would, as of the
Closing Date, prevent the issuance or sale of the Securities or the issuance of
the Guarantees.
(m) Good Standing. The Representative shall have received on and
as of the Closing Date satisfactory evidence of the good standing of the
Company, its Subsidiary Guarantors and its significant subsidiaries in their
respective jurisdictions of organization and their good standing in such other
jurisdictions as the Representative may reasonably request, in each case in
writing or any standard form of telecommunication, from the appropriate
governmental authorities of such jurisdictions.
(n) Registration Rights Agreement. The Initial Purchasers shall
have received a counterpart of the Registration Rights Agreement that shall have
been executed and delivered by a duly authorized officer of the Company and each
of the Guarantors.
(o) The Indenture. The Indenture shall have been duly executed and
delivered by the Company, each of the Guarantors and the Trustee, and the
Securities shall have been duly executed and delivered by the Company and duly
authenticated by the Trustee.
(p) The Third Amendment to the Credit Agreement. The Third
Amendment to the Credit Agreement, in the form such amendment has been described
in the Offering Memorandum, shall have been approved by the required number of
banks, parties thereto and such Third Amendment shall be effective and no
default under the Credit Agreement shall be in existence on the Closing Date.
(q) PORTAL and DTC. The Securities shall have been approved by the
NASD for trading in the PORTAL Market and shall be eligible for clearance and
settlement through DTC.
(r) Additional Documents. On or prior to the Closing Date, the
Company and the Guarantors shall have furnished to the Representative such
further certificates and documents as the Representative may reasonably request.
All opinions, letters, certificates and evidence 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 Purchasers.
6. Indemnification and Contribution.
(a) Indemnification of the Initial Purchasers. The Company and
each of the Guarantors jointly and severally agree to indemnify and hold
harmless each Initial Purchaser, its affiliates, directors and officers and each
person, if any, who controls such Initial Purchaser within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and
19
liabilities (including, without limitation, legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise
out of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in the Preliminary Offering Memorandum or the Offering
Memorandum (or any amendment or supplement thereto) or any omission or alleged
omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages or
liabilities arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with any information relating to any Initial Purchaser furnished to the Company
in writing by such Initial Purchaser through the Representative expressly for
use therein; provided, that with respect to any such untrue statement in or
omission from the Preliminary Offering Memorandum, the indemnity agreement
contained in this paragraph (a) shall not inure to the benefit of any Initial
Purchaser to the extent that the sale to the person asserting any such loss,
claim, damage or liability was an initial resale by such Initial Purchaser and
any such loss, claim, damage or liability of or with respect to such Initial
Purchaser results from the fact that both (i) a copy of the Offering Memorandum
(excluding any documents incorporated by reference therein) was not sent or
given to such person at or prior to the written confirmation of the sale of such
Securities to such person and (ii) the untrue statement in or omission from such
Preliminary Offering Memorandum was corrected in the Offering Memorandum unless,
in either case, such failure to deliver the Offering Memorandum was a result of
non-compliance by the Company with the provisions of Section 4 hereof.
(b) Indemnification of the Company. Each Initial Purchaser agrees,
severally and not jointly, to indemnify and hold harmless the Company, each of
the Guarantors and each person, if any, who controls the Company or any of the
Guarantors within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the indemnity set forth in paragraph
(a) above, but only with respect to any losses, claims, damages or liabilities
that arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with any information relating to such Initial Purchaser furnished to the Company
in writing by such Initial Purchaser through the Representative expressly for
use in the Preliminary Offering Memorandum and the Offering Memorandum (or any
amendment or supplement thereto), it being understood and agreed that the only
such information consists of the following: the statements concerning the
Initial Purchasers contained in the third, fifth and sixth sentences of the
ninth and eleventh paragraphs, under the heading "Plan of Distribution," and
with respect to each Initial Purchaser, such Initial Purchaser's name as it
appears on the cover.
(c) Notice and Procedures. If any suit, action, proceeding
(including any governmental or regulatory investigation), claim or demand shall
be brought or asserted against any person in respect of which indemnification
may be sought pursuant to either paragraph (a) or (b) above, such person (the
"Indemnified Person") shall promptly notify the person against whom such
indemnification may be sought (the "Indemnifying Person") in writing; provided
that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under this Section 6 except to the extent that it
20
has been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided, further, that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have to
an Indemnified Person otherwise than under this Section 6. If any such
proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 6 that the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding, as incurred. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary; (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for any Initial Purchaser, its affiliates, directors and officers
and any control persons of such Initial Purchaser shall be designated in writing
by J.P. Morgan Securities Inc. and any such separate firm for the Company, the
Guarantors and any control persons of the Company and the Guarantors shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the
Indemnified Person for reasonable fees and expenses of counsel as contemplated
by this paragraph, the Indemnifying Person shall be liable for any settlement of
any proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person, unless in each case, agreed to by the Indemnified Person.
21
(d) Contribution. If the indemnification provided for in
paragraphs (a) and (b) above is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantors on the one hand and
the Initial Purchasers on the other from the offering of the Securities or (ii)
if the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company and the
Guarantors on the one hand and the Initial Purchasers on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Guarantors on the one hand and
the Initial Purchasers on the other shall be deemed to be in the same respective
proportions as the net proceeds (before deducting expenses) received by the
Company from the sale of the Securities and the total discounts and commissions
received by the Initial Purchasers in connection therewith, as provided in this
Agreement, bear to the aggregate offering price of the Securities. The relative
fault of the Company and the Guarantors on the one hand and the Initial
Purchasers on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or any Guarantor or by the Initial Purchasers and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) Limitation on Liability. The Company, the Guarantors and the
Initial Purchasers agree that it would not be just and equitable if contribution
pursuant to this Section 6 were determined by pro rata allocation (even if the
Initial Purchasers were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities referred to in
paragraph (d) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with any such action or claim. Notwithstanding the provisions of this
Section 6, in no event shall an Initial Purchaser be required to contribute any
amount in excess of the amount by which the total discounts and commissions
received by such Initial Purchaser with respect to the offering of the
Securities exceeds the amount of any damages that such Initial Purchaser has
otherwise been required to pay by reason of such 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. The Initial Purchasers' obligations to contribute
pursuant to this Section 6 are several in proportion to their respective
purchase obligations hereunder and not joint.
22
(f) Non-Exclusive Remedies. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies that may
otherwise be available to any Indemnified Person at law or in equity.
7. Termination. This Agreement may be terminated in the absolute
discretion of the Representative, by notice to the Company, if after the
execution and delivery of this Agreement and prior to the Closing Date: (i)
trading generally shall have been suspended or materially limited on the New
York Stock Exchange or the over-the- counter market; (ii) trading of any
securities issued or guaranteed by the Company or any of the Guarantors shall
have been suspended on any exchange or in any over-the-counter market; (iii) a
general moratorium on commercial banking activities shall have been declared by
federal or New York State authorities; or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis, either within or outside the United States, that, in the
judgment of the Representative, is material and adverse and makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of
the Securities on the terms and in the manner contemplated by this Agreement and
the Offering Memorandum.
8. Defaulting Initial Purchaser. (a) If, on the Closing Date, any
Initial Purchaser defaults on its obligation to purchase the Securities that it
has agreed to purchase hereunder, the non-defaulting Initial Purchasers may in
their discretion arrange for the purchase of such Securities by other persons
satisfactory to the Company on the terms contained in this Agreement. If, within
36 hours after any such default by any Initial Purchaser, the non-defaulting
Initial Purchasers do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of 36 hours within which to
procure other persons satisfactory to the non-defaulting Initial Purchasers to
purchase such Securities on such terms. If other persons become obligated or
agree to purchase the Securities of a defaulting Initial Purchaser, either the
non-defaulting Initial Purchasers or the Company may postpone the Closing Date
for up to five full business days in order to effect any changes that in the
opinion of counsel for the Company or counsel for the Initial Purchasers may be
necessary in the Offering Memorandum or in any other document or arrangement,
and the Company agrees to promptly prepare any amendment or supplement to the
Offering Memorandum that effects any such changes. As used in this Agreement,
the term "Initial Purchaser" includes, for all purposes of this Agreement unless
the context otherwise requires, any person not listed in Schedule 1 hereto that,
pursuant to this Section 8, purchases Securities that a defaulting Initial
Purchaser agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase
of the Securities of a defaulting Initial Purchaser or Initial Purchasers by the
non-defaulting Initial Purchasers and the Company as provided in paragraph (a)
above, the aggregate principal amount of such Securities that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
all the Securities, then the Company shall have the right to require each
non-defaulting Initial Purchaser to purchase the principal amount of Securities
that such Initial Purchaser agreed to purchase hereunder plus such Initial
Purchaser's pro rata share (based on the principal amount of Securities that
such Initial Purchaser agreed to purchase hereunder) of the Securities of such
defaulting Initial Purchaser or Initial Purchasers for which such arrangements
have not been made.
23
(c) If, after giving effect to any arrangements for the purchase
of the Securities of a defaulting Initial Purchaser or Initial Purchasers by the
non-defaulting Initial Purchasers and the Company as provided in paragraph (a)
above, the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Securities, or if the Company shall not exercise the right described in
paragraph (b) above, then this Agreement shall terminate without liability on
the part of the non- defaulting Initial Purchasers. Any termination of this
Agreement pursuant to this Section 8 shall be without liability on the part of
the Company or the Guarantors, except that the provisions of Section 6 hereof
shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Company, the Guarantors or any
non-defaulting Initial Purchaser for damages caused by its default.
9. Payment of Expenses. (a) Whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is terminated
other than pursuant to Section 8, the Company and each of the Guarantors jointly
and severally agree to pay or cause to be paid all costs and expenses incident
to the performance of their respective obligations hereunder, including without
limitation, (i) the costs incident to the authorization, issuance, sale,
preparation and delivery of the Securities and any taxes payable in that
connection; (ii) the costs incident to the preparation and printing of the
Preliminary Offering Memorandum and the Offering Memorandum (including any
amendment or supplement thereto) and the distribution thereof; (iii) the costs
of reproducing and distributing each of the Transaction Documents; (iv) the fees
and expenses of the Company's and the Guarantors' counsel and independent
accountants; (v) the fees and expenses incurred in connection with the
registration or qualification and determination of eligibility for investment of
the Securities under the laws of such jurisdictions as the Representative may
designate and the preparation, printing and distribution of a Blue Sky
Memorandum (including the related fees and expenses of counsel for the Initial
Purchasers); (vi) any fees charged by rating agencies for rating the Securities;
(vii) the fees and expenses of the Trustee and any paying agent (including
related fees and expenses of any counsel to such parties); (viii) all expenses
and application fees incurred in connection with the application for the
inclusion of the Securities on the PORTAL Market and the approval of the
Securities for book-entry transfer by DTC; and (ix) all expenses incurred by the
Company (but not the Initial Purchasers) in connection with any "road show"
presentation to potential investors.
(b) If (i) this Agreement is terminated pursuant to Section 7,
(ii) the Company for any reason fails to tender the Securities for delivery to
the Initial Purchasers or (iii) the Initial Purchasers decline to purchase the
Securities for any reason permitted under this Agreement other than pursuant to
Section 8, the Company and each of the Guarantors jointly and severally agrees
to reimburse the Initial Purchasers for all out-of-pocket costs and expenses
(including the reasonable fees and expenses of their counsel) reasonably
incurred by the Initial Purchasers in connection with this Agreement and the
offering contemplated hereby.
10. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and
24
any controlling persons referred to herein, and the affiliates, officers and
directors of each Initial Purchaser, the Company and each Guarantor referred to
in Section 6 hereof. Nothing in this Agreement is intended or shall be construed
to give any other person any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision contained herein. No purchaser of
Securities from any Initial Purchaser shall be deemed to be a successor merely
by reason of such purchase.
11. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, the Guarantors and
the Initial Purchasers contained in this Agreement or made by or on behalf of
the Company, the Guarantors or the Initial Purchasers pursuant to this Agreement
or any certificate delivered pursuant hereto shall survive the delivery of and
payment for the Securities and shall remain in full force and effect, regardless
of any termination of this Agreement or any investigation made by or on behalf
of the Company, the Guarantors or the Initial Purchasers.
12. Certain Defined Terms. For purposes of this Agreement, (a)
except where otherwise expressly provided, the term "affiliate" has the meaning
set forth in Rule 405 under the Securities Act; (b) the term "business day"
means any day other than a day on which banks are permitted or required to be
closed in New York City; (c) the term "Exchange Act" means the Securities
Exchange Act of 1934, as amended; and (d) the term "subsidiary" has the meaning
set forth in Rule 405 under the Securities Act; and (e) the term "significant
subsidiary" has the meaning set forth in Rule 1-02 of Regulation S-X under the
Exchange Act.
13. Miscellaneous. (a) Authority of the Representative. Any action
by the Initial Purchasers hereunder may be taken by J.P. Morgan Securities Inc.
on behalf of the Initial Purchasers, and any such action taken by J.P. Morgan
Securities Inc. shall be binding upon the Initial Purchasers.
(b) Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted and confirmed by any standard form of telecommunication. Notices to
the Initial Purchasers shall be delivered or sent by mail or by fax to the
Representative c/o J.P. Morgan Securities Inc., 270 Park Avenue, New York, New
York 10017 (fax: (212) 270-1063); Attention: Mr. Gerry Murray. Notices to the
Company and the Guarantors shall be delivered or sent by mail or by fax to the
address of the Company set forth in the Offering Memorandum, Attention: Mr.
Ernest T. Thomas, Chief Financial Officer (fax: (616) 802-1554), with a copy to
Mr. Dennis M. Myers, Esq., Kirkland & Ellis (fax: (312) 861- 2200).
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(d) Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by fax), each of which
shall be an original and all of which together shall constitute one and the same
instrument.
25
(e) Amendments or Waivers. No amendment or waiver of any provision
of this Agreement, nor any consent or approval to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
parties hereto.
(f) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
26
If the foregoing is in accordance with your understanding, please indicate your
acceptance of this Agreement by signing in the space provided below.
R.J. TOWER CORPORATION
By: /s/ DANIEL H. WEBBER
------------------------------
Name: Daniel H. Webber
Title: Vice President and
Assistant Secretary
TOWER AUTOMOTIVE, INC.
By: /s/ DANIEL H. WEBBER
------------------------------
Name: Daniel H. Webber
Title: Assistant Secretary
27
ALGOODS USA, INC.
KALAMAZOO STAMPING AND
DIE COMPANY
TOWER AUTOMOTIVE BARDSTOWN, INC.
TOWER AUTOMOTIVE BOWLING
GREEN, LLC
TOWER AUTOMOTIVE CHICAGO, LLC
TOWER AUTOMOTIVE FINANCE, INC.
TOWER AUTOMOTIVE GRANITE CITY, LLC
TOWER AUTOMOTIVE GRANITE CITY
SERVICES, LLC
TOWER AUTOMOTIVE INTERNATIONAL,
INC.
TOWER AUTOMOTIVE INTERNATIONAL
FUNDING, INC.
TOWER AUTOMOTIVE INTERNATIONAL
HOLDINGS, INC.
TOWER AUTOMOTIVE LANSING, LLC
TOWER AUTOMOTIVE MICHIGAN, LLC
TOWER AUTOMOTIVE MILWAUKEE, LLC
TOWER AUTOMOTIVE PLYMOUTH, INC.
TOWER AUTOMOTIVE PRODUCTS
COMPANY, INC.
TOWER AUTOMOTIVE SERVICES AND
TECHNOLOGY, INC.
TOWER AUTOMOTIVE TECHNOLOGY, INC.
TOWER AUTOMOTIVE TECHNOLOGY
PRODUCTS, INC.
TOWER AUTOMOTIVE TOOL, LLC
TOWER AUTOMOTIVE TOOLING
SERVICES, INC.
TOWER AUTOMOTIVE WISCONSIN, LLC
TOWER SERVICES, INC.
TRYLON CORPORATION
On behalf of each of the entities listed
above:
By: /s/ DANIEL H. WEBBER
------------------------------
Name: Daniel H. Webber
Title: Vice President and
Assistant Secretary
28
Accepted: June 6, 2003
J.P. MORGAN SECURITIES INC.
For itself and on behalf of the
several Initial Purchasers listed
in Schedule 1 hereto.
By /s/ TIMOTHY DONAHUE
------------------------------------------
Authorized Signatory
Timothy Donahue
Vice President
29
Schedule 1
Initial Purchaser Principal Amount
----------------- ----------------
J.P. Morgan Securities Inc. $ 131,580,000
Banc of America Securities LLC $ 89,010,000
ABN AMRO Incorporated $ 10,320,000
Comerica Securities $ 10,320,000
Scotia Capital (USA) Inc. $ 10,320,000
BNP Paribas Securities Corp $ 6,450,000
-------------
Total $ 258,000,000
30
Schedule 2
[SUBSIDIARIES]
31
Schedule 3
GUARANTORS
ALGOODS USA, INC.
KALAMAZOO STAMPING AND DIE COMPANY
TOWER AUTOMOTIVE BARDSTOWN, INC.
TOWER AUTOMOTIVE BOWLING GREEN, LLC
TOWER AUTOMOTIVE CHICAGO, LLC
TOWER AUTOMOTIVE FINANCE, INC.
TOWER AUTOMOTIVE GRANITE CITY, LLC
TOWER AUTOMOTIVE GRANITE CITY SERVICES, LLC
TOWER AUTOMOTIVE INTERNATIONAL, INC.
TOWER AUTOMOTIVE INTERNATIONAL FUNDING, INC.
TOWER AUTOMOTIVE INTERNATIONAL HOLDINGS, INC.
TOWER AUTOMOTIVE LANSING, LLC
TOWER AUTOMOTIVE MICHIGAN, LLC
TOWER AUTOMOTIVE MILWAUKEE, LLC
TOWER AUTOMOTIVE PLYMOUTH, INC.
TOWER AUTOMOTIVE PRODUCTS COMPANY, INC.
TOWER AUTOMOTIVE SERVICES AND TECHNOLOGY, INC.
TOWER AUTOMOTIVE TECHNOLOGY, INC.
TOWER AUTOMOTIVE TECHNOLOGY PRODUCTS, INC.
TOWER AUTOMOTIVE TOOL, LLC
TOWER AUTOMOTIVE TOOLING SERVICES, INC.
TOWER AUTOMOTIVE WISCONSIN, LLC
TOWER SERVICES, INC.
TRYLON CORPORATION
32
ANNEX A
Restrictions on Offers and Sales Outside the United States
In connection with offers and sales of Securities outside the United
States:
(a) Each Initial Purchaser acknowledges that the Securities have
not been registered under the Securities Act and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons
except pursuant to an exemption from, or in transactions not subject to, the
registration requirements of the Securities Act.
(b) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) Such Initial Purchaser has offered and sold the
Securities, and will offer and sell the Securities, (A) as part of
their distribution at any time and (B) otherwise until 40 days after
the later of the commencement of the offering of the Securities and the
Closing Date, only in accordance with Regulation S under the Securities
Act ("Regulation S") or Rule 144A or any other available exemption from
registration under the Securities Act.
(ii) None of such Initial Purchaser or any of its
affiliates or any other person acting on its or their behalf has
engaged or will engage in any directed selling efforts with respect to
the Securities, and all such persons have complied and will comply with
the offering restrictions requirement of Regulation S.
(iii) At or prior to the confirmation of sale of any
Securities sold in reliance on Regulation S, such Initial Purchaser
will have sent to each distributor, dealer or other person receiving a
selling concession, fee or other remuneration that purchase Securities
from it during the distribution compliance period a confirmation or
notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933, as amended (the "Securities
Act"), and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons (i) as
part of their distribution at any time or (ii) otherwise until
40 days after the later of the commencement of the offering of
the Securities and the date of original issuance of the
Securities, except in accordance with Regulation S or Rule
144A or any other available exemption from registration under
the Securities Act. Terms used above have the meanings given
to them by Regulation S."
(iv) Such Initial Purchaser has not and will not enter
into any contractual arrangement with any distributor with respect to
the distribution of the Securities, except with its affiliates or with
the prior written consent of the Company.
33
Terms used and not otherwise defined in this Agreement or Annex A have the
meanings given to them by Regulation S.
(b) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) it has not offered or sold and, prior to the date six
months after the Closing Date, will not offer or sell any Securities to
persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and
will not result in an offer to the public in the United Kingdom within
the meaning of the United Kingdom Public Offers of Securities
Regulations 1995 (as amended);
(ii) it has only communicated or caused to be communicated
and will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the United Kingdom Financial Services and Markets Act
2000 (the "FSMA")) received by it in connection with the issue or sale
of any Securities in circumstances in which Section 21(1) of the FSMA
does not apply to the Company or the Guarantors; and
(iii) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation
to the Securities in, from or otherwise involving the United Kingdom.
(c) Each Initial Purchaser acknowledges that no action has been or
will be taken by the Company that would permit a public offering of the
Securities, or possession or distribution of the Preliminary Offering
Memorandum, the Offering Memorandum or any other offering or publicity material
relating to the Securities, in any country or jurisdiction where action for that
purpose is required.
34
ANNEX B
[Form of Opinion of Counsel for the Company]
(a) The Parent Guarantor and the Company and each of its domestic
subsidiaries have been duly organized and are validly existing and in good
standing under the laws of their respective jurisdictions of organization, are
duly qualified to do business and are in good standing in each jurisdiction in
which their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged, except where the failure to be so
qualified or have such power or authority would not, individually or in the
aggregate, have a Material Adverse Effect.
(b) All the outstanding shares of capital stock or other equity
interests of the Company and each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non- assessable (except as
otherwise described in the Offering Memorandum).
(c) The Company and each of the Guarantors have full right, power
and authority to execute and deliver each of the Transaction Documents to which
each is a party and to perform their respective obligations thereunder; and all
action required to be taken for the due and proper authorization, execution and
delivery of each of the Transaction Documents and the consummation of the
transactions contemplated thereby has been duly and validly taken.
(d) The Indenture has been duly authorized, executed and delivered
by the Company and each of the Guarantors.
(e) The Notes and the Guarantees have been duly authorized,
executed and delivered by the Company each of the Guarantors.
(f) The Exchange Securities (including the related guarantees)
have been duly authorized by the Company and each of the Guarantors.
(g) This Agreement has been duly authorized, executed and
delivered by the Company and the Guarantors; and the Registration Rights
Agreement has been duly authorized, executed and delivered by the Company and
each of the Guarantors.
35
In rendering such opinion, such counsel may rely as to matters of fact
on certificates of responsible officers of the Company and the Guarantors and
public officials that are furnished to the Initial Purchasers.
The opinion of Varnum, Riddering, Schmidt & Howlett LLP described above shall be
rendered to the Initial Purchasers at the request of the Company and shall so
state therein.
36
ANNEX C
[Form of Opinion of Special Counsel for the Company]
[Attached]
37
ANNEX D
R.J. TOWER CORPORATION
OFFICERS' CERTIFICATE
The undersigned, Dugald K. Campbell, the duly appointed
President of R.J. Tower Corporation (the "Company"), a Michigan corporation, and
Ernest T. Thomas, the duly appointed Treasurer of the Company, do hereby certify
on behalf of the Company and solely in their respective capacities as officers
of the Company (and not in an individual capacity in any manner) as follows in
connection with Section 5(e) of the Purchase Agreement dated June 6, 2003 (the
"Purchase Agreement"), among the Company, Tower Automotive, Inc. (the "Parent
Guarantor") and the Subsidiary Guarantors (together with the Parent Guarantor,
the "Guarantors") parties thereto and the initial purchasers named therein (the
"Initial Purchasers") (capitalized terms that are defined in the Purchase
Agreement are used herein as therein defined):
1. in our opinion, after examining the Offering Memorandum, the Offering
Memorandum, as of its date, 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 in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, and since the date of the Offering Memorandum, no event has
occurred which should have been set forth in a supplement or amendment
to the Offering Memorandum so that the Offering Memorandum (as so
amended or supplemented) would not include any untrue statement of a
material fact and would not omit to state a material fact required to
be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
2. the representations and warranties of the Company and the Guarantors in
the Purchase Agreement are true and correct in all material respects as
of the date hereof;
3. the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under the Purchase
Agreement on or prior to the date hereof;
4. subsequent to the date of the Offering Memorandum, (i) there has been
no material change in the capital stock or long-term debt of the Parent
Guarantor, the Company or any of their subsidiaries, or any dividend or
distribution of any kind declared, set aside for payment, paid or made
by the Parent Guarantor or the Company on any class of capital stock
(other than dividends of the Tower Automotive Capital Trust 6 3/4%
Trust Convertible Preferred Securities), or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the business, properties, management, financial
position, results of operations or prospects of the Parent Guarantor
and its subsidiaries taken as a whole; (ii) neither the Parent
Guarantor, the Company nor any of their subsidiaries has entered into
any transaction, incurred any liability or obligation, direct or
contingent, where such transaction, liability or obligation is
material, either individually or in the aggregate, to the Parent
Guarantor, the Company and their subsidiaries taken as a whole; and
(iii) none of the Parent Guarantor, the Company nor any of their
subsidiaries has sustained any loss or interference with its business
from any labor disturbance or dispute or any action, order or
38
decree of any court or arbitrator or governmental or regulatory
authority, where such occurrence or event is material, either
individually or in the aggregate, to the Parent Guarantor and its
subsidiaries taken as a whole, except in each case as otherwise
disclosed in the Offering Memorandum; and
5. subsequent to the execution and delivery of the Purchase Agreement (i)
no downgrading has occurred in the rating accorded the Securities or
any of the Parent Guarantor's or the Company's other debt securities or
preferred stock by any "nationally recognized statistical rating
organization", as such term is defined by the Commission for purposes
of Rule 436(g)(2) of the rules and regulations of the Commission under
the Securities Act and (ii) no such organization has publicly announced
or notified the Parent Guarantor or the Company that it has under
surveillance or review, or has changed its outlook with respect to, its
rating of the Securities or any of the Parent Guarantor or the
Company's other debt securities or preferred stock (other than an
announcement with positive implications of a possible upgrading).
[Signatures on next page]
39
IN WITNESS WHEREOF, the undersigned have executed this
certificate as of the_____________day of June 2003.
__________________________________________
Name: Dugald K. Campbell
Title: President
__________________________________________
Name: Ernest T. Thomas
Title: Treasurer
ANNEX E
R.J. TOWER CORPORATION
OFFICERS' CERTIFICATE
Reference is made to the offering by R.J. Tower Corporation, a
Michigan corporation (the "Company"), of $258,000,000 in aggregate principal
amount of 12% Senior Notes due 2013, pursuant to the terms of the Purchase
Agreement, dated June 6, 2003 (the "Purchase Agreement"), among the Company,
Tower Automotive, Inc. (the "Parent Guarantor") and the Subsidiary Guarantors
(together with the Parent Guarantor, the "Guarantors") parties thereto and the
initial purchasers named therein (the "Initial Purchasers"). Capitalized terms
used but not defined herein shall have the meaning assigned to such terms in the
Purchase Agreement. Each of the undersigned, Dugald K. Campbell, the duly
appointed President and Chief Executive Officer of the Parent Guarantor, and
Ernest T. Thomas, the duly appointed Chief Financial Officer and Treasurer of
the Parent Guarantor, pursuant to Section 5(f) of the Purchase Agreement, hereby
certifies on behalf of the Company and solely in their respective capacities as
officers of the Company (and not in an individual capacity in any manner) that,
as of the date hereof:
1. Arthur Andersen LLP audited the consolidated
financial statements of the Parent Guarantor as of December 31, 2001 and for
each of the two years in the period ended December 31, 2001, included in and
incorporated by reference into the offering memorandum dated June 6, 2003 (the
"Offering Memorandum"). Arthur Andersen LLP's report with respect thereto is
also included in the Offering Memorandum.
2. At all times that Arthur Andersen LLP was engaged by
the Parent Guarantor, Arthur Andersen LLP was a firm of independent certified
public accountants with respect to the Parent Guarantor and the Company within
the meaning of the Securities Act of 1933, as amended (the "Act"), and the
applicable rules and regulations thereunder adopted by the Securities and
Exchange Commission (the "SEC").
3. To the best of our knowledge, the consolidated
financial statements audited by Arthur Andersen LLP included in and incorporated
by reference into the Offering Memorandum comply as to form in all material
respects with the applicable accounting requirements of the Act and the related
rules and regulations adopted by the SEC.
4. Arthur Andersen LLP has not audited any financial
statements of the Parent Guarantor as of any date or for any period subsequent
to December 31, 2001 and has not reviewed any financial statements of the Parent
or the Company as of any date or for any period subsequent to March 31, 2002.
5. Arthur Andersen LLP's reports on the consolidated
financial statements of the Parent Guarantor as of and for the two years ended
December 31, 2001 did not contain any adverse opinion or disclaimer of opinion,
nor were they qualified or modified as to uncertainty or audit scope. Arthur
Andersen LLP's report refers to the Parent Guarantor's adoption on January 1,
2001 of the Statement of Financial Accounting Standards No. 133, "Accounting for
Derivative Instruments and Hedging Activities."
2
6. During the two years ended December 31, 2001, there
were no disagreements between the Parent Guarantor and Arthur Andersen LLP on
any matter of accounting principle or practices, financial statement disclosure,
or auditing scope or procedure, which disagreements, if not resolved to Arthur
Andersen LLP's satisfaction, would have caused Arthur Andersen LLP to make
reference to the subject matter of the disagreement in connection with its
reports, and there were no reportable events as described in Item 304(a)(1)(v)
of Regulation S-K.
[Signatures on next page]
Dated as of this_____day of June 2003.
_______________________________________
Name: Dugald K. Campbell
Title: President and Chief Executive
Officer
_______________________________________
Name: Ernest T. Thomas
Title: Chief Financial Officer and
Treasurer
ANNEX F
TOWER AUTOMOTIVE, INC.
OFFICERS' CERTIFICATE
Reference is made to the offering by R.J. Tower Corporation, a
Michigan corporation (the "Company"), of $258,000,000 aggregate principal amount
of 12% Senior Notes due 2013, pursuant to the terms of the Purchase Agreement,
dated June 6, 2003 (the "Purchase Agreement"), among the Company, Tower
Automotive, Inc. (the "Parent Guarantor") and the Subsidiary Guarantors
(together with the Parent Guarantor, the "Guarantors") parties thereto and the
initial purchasers named therein (the "Initial Purchasers"). Capitalized terms
used but not defined herein shall have the meaning assigned to such terms in the
Purchase Agreement. Each of the undersigned, Dugald K. Campbell, the duly
appointed President and Chief Executive Officer of the Parent Guarantor, and
Ernest T. Thomas, the duly appointed Chief Financial Officer and Treasurer of
the Parent Guarantor, pursuant to Section 5(g) of the Purchase Agreement, hereby
certifies that solely in his respective capacity as an officer of the Parent
Guarantor (and not in an individual capacity in any manner), as of the date
hereof:
1. I have reviewed the offering memorandum dated June 6,
2003 ("the Offering Memorandum") which incorporates by reference the Annual
Report on Form 10-K for the fiscal year ended December 31, 2002, the Quarterly
Report on Form 10-Q for each three month period ended March 31, 2003 and the
Definitive Proxy Statement on Schedule 14A of the Parent Guarantor (the "Covered
Reports"). Each reference to the Offering Memorandum shall be deemed to include
the Covered Report, except to the extent that such information in the Covered
Reports has not been modified or superseded by information contained in the
Offering Memorandum, or in any subsequently filed document incorporated by
reference into the Offering Memorandum.
2. Based on my knowledge, the Offering Memorandum does
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances under
which such statements were made, not misleading with respect to the periods
covered by the Covered Reports and the Offering Memorandum. Each reference to
the Offering Memorandum shall be deemed to include the Covered Report, except to
the extent that such information in the Covered Reports has been modified or
superseded by information contained in the Offering Memorandum, or in any
subsequently filed document incorporated by reference into the Offering
Memorandum.
3. Based on my knowledge, the financial statements, and
other financial information included in and incorporated by reference into the
Offering Memorandum, fairly present in all material respects the financial
condition, results of operations and cash flows of the Parent Guarantor as of,
and for, the periods presented in the Covered Reports and the Offering
Memorandum.
4. The Covered Reports fully comply with the
requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(15 U.S.C. 78m or 78o(d)).
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5. The Parent Guarantor's other certifying officer and I
are responsible for establishing and maintaining disclosure controls and
procedures (as defined in Exchange Act Rules 13a-14 and 15d-14) for the Parent
Guarantor and the Company and we have:
a. designed such disclosure controls and procedures to
ensure that material information relating to the Parent Guarantor and the
Company, including their consolidated subsidiaries, is made known to us by
others within those entities, particularly during the period in which the
Covered Reports and the Offering Memorandum were being prepared;
b. evaluated the effectiveness of the Parent Guarantor
and the Company's disclosure controls and procedures as of a date within 90 days
prior to the filing date of the Quarterly Report on Form 10-Q for the period
ended March 31, 2003 (the "Evaluation Date"); and
c. presented in the Quarterly Report on Form 10-Q for
the period ended March 31, 2003 our conclusions about the effectiveness of the
disclosure controls and procedures based on our evaluation as of the Evaluation
Date.
6. The Parent Guarantor and the Company's other
certifying officer and I have disclosed, based on our most recent evaluation, to
the Parent Guarantor's and the Company's auditors and the audit committee of
Parent Guarantor's board of directors (or persons performing the equivalent
function):
a. all significant deficiencies in the design or
operation of internal controls which could adversely affect the Parent Guarantor
or the Company's ability to record, process, summarize and report financial data
and have identified for the Company's auditors any material weakness in internal
controls; and
b. any fraud, whether or not material, that involves
management or other employees who have a significant role in the Parent
Guarantor's or the Company's internal controls.
7. The Company's other certifying officer and I have
indicated in the latest Quarterly Report on Form 10-Q for the period ended March
31, 2003 whether or not there were significant changes in internal controls or
in other factors that could significantly affect internal controls subsequent to
the date of our most recent evaluation, including any corrective actions with
regard to significant deficiencies and material weaknesses.
[Signatures on next page]
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Dated as of this______day of June 2003.
_________________________________
Name: Dugald K. Campbell
Title: President
_________________________________
Name: Ernest T. Thomas
Title: Treasurer
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Exhibit A
[Form of Registration Rights Agreement]
[Attached]
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