Dura Operating Corp.
Dura Automotive Systems, Inc.
Dura Automotive Systems, Inc. Column Shifter Operations
Universal Tool & Stamping Company Inc.
Dura Automotive Systems Cable Operations, Inc.
Adwest Electronics, Inc.
Adwest Western Automotive, Inc.
X.E. Co.
Excel of Tennessee, L.P.
Excel Corporation
Excel Industries of Michigan, Inc.
Anderson Industries, Inc.
Atwood Industries, Inc.
Hydro Flame Corporation
Atwood Automotive Inc.
Mark I Molded Plastics, Inc.
Mark I Molded Plastics of Tennessee, Inc.
$300,000,000 9% Senior Subordinated Notes due 2009
EURO 100,000,000 9% Senior Subordinated Notes due 2009
Purchase Agreement
dated April 15, 1999
NationsBanc Montgomery Securities LLC
Bank of America International Limited
Donaldson, Lufkin & Jenrette Securities Corporation
Donaldson, Lufkin & Jenrette International
Table of Contents
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
SECTION 1. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . .3
(A) NO REGISTRATION REQUIRED . . . . . . . . . . . . . . . . . . . .3
(B) NO INTEGRATION OF OFFERINGS OR GENERAL
SOLICITATION . . . . . . . . . . . . . . . . . . . . . . . . . .3
(C) ELIGIBILITY FOR RESALE UNDER RULE 144A . . . . . . . . . . . . .3
(D) THE OFFERING MEMORANDUM. . . . . . . . . . . . . . . . . . . . .3
(E) INCORPORATED DOCUMENTS . . . . . . . . . . . . . . . . . . . . .3
(F) THE PURCHASE AGREEMENT . . . . . . . . . . . . . . . . . . . . .4
(G) THE REGISTRATION RIGHTS AGREEMENTS, DTC
AGREEMENT AND EURO DEPOSITARY AGREEMENT. . . . . . . . . . . . .4
(H) AUTHORIZATION OF THE SECURITIES AND THE
EXCHANGE SECURITIES. . . . . . . . . . . . . . . . . . . . . . .4
(I) AUTHORIZATION OF THE INDENTURES. . . . . . . . . . . . . . . . .5
(J) DESCRIPTION OF THE SECURITIES AND THE
INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . .5
(K) NO MATERIAL ADVERSE CHANGE . . . . . . . . . . . . . . . . . . .5
(L) INDEPENDENT ACCOUNTANTS. . . . . . . . . . . . . . . . . . . . .5
(M) PREPARATION OF THE FINANCIAL STATEMENTS. . . . . . . . . . . . .5
(N) INCORPORATION AND GOOD STANDING OF THE COMPANY
AND ITS SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . . .6
(O) CAPITALIZATION AND OTHER CAPITAL STOCK MATTERS . . . . . . . . .6
(P) NON-CONTRAVENTION OF EXISTING INSTRUMENTS; NO
FURTHER AUTHORIZATIONS OR APPROVALS REQUIRED . . . . . . . . . .7
(Q) NO MATERIAL ACTIONS OR PROCEEDINGS . . . . . . . . . . . . . . .7
(R) INTELLECTUAL PROPERTY RIGHTS . . . . . . . . . . . . . . . . . .8
(S) ALL NECESSARY PERMITS, ETC.. . . . . . . . . . . . . . . . . . .8
(T) TITLE TO PROPERTIES. . . . . . . . . . . . . . . . . . . . . . .8
(U) TAX LAW COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . .8
(V) COMPANY NOT AN "INVESTMENT COMPANY". . . . . . . . . . . . . . .8
(W) NO PRICE STABILIZATION OR MANIPULATION . . . . . . . . . . . . .8
(X) SOLVENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
(Y) NO UNLAWFUL CONTRIBUTIONS OR OTHER PAYMENTS. . . . . . . . . . .9
(Z) COMPANY'S ACCOUNTING SYSTEM. . . . . . . . . . . . . . . . . . .9
(AA) COMPLIANCE WITH ENVIRONMENTAL LAWS . . . . . . . . . . . . . . .9
(BB) PERIODIC REVIEW OF COSTS OF ENVIRONMENTAL
COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(CC) ERISA COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . 10
(DD) REGULATION S REQUIREMENTS. . . . . . . . . . . . . . . . . . . 10
(EE) REPORTING. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2. PURCHASE, SALE AND DELIVERY OF THE SECURITIES. . . . . . . . . . . . . 10
(A) THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . 10
(B) THE CLOSING DATE . . . . . . . . . . . . . . . . . . . . . . . 11
(C) DELIVERY OF THE DOLLAR NOTES . . . . . . . . . . . . . . . . . 11
(D) DELIVERY OF EURO NOTES . . . . . . . . . . . . . . . . . . . . 11
(E) DELIVERY OF OFFERING MEMORANDUM TO THE INITIAL
PURCHASERS . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(F) INITIAL PURCHASERS AS QUALIFIED INSTITUTIONAL
BUYERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3. ADDITIONAL COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . 11
(A) INITIAL PURCHASERS' REVIEW OF PROPOSED
AMENDMENTS AND SUPPLEMENTS . . . . . . . . . . . . . . . . . . 11
(B) AMENDMENTS AND SUPPLEMENTS TO THE OFFERING
MEMORANDUM AND OTHER SECURITIES ACT MATTERS. . . . . . . . . . 12
i
(C) COPIES OF THE OFFERING MEMORANDUM. . . . . . . . . . . . . . . 12
(D) BLUE SKY COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . 12
(E) USE OF PROCEEDS. . . . . . . . . . . . . . . . . . . . . . . . 12
(F) THE DEPOSITARY . . . . . . . . . . . . . . . . . . . . . . . . 13
(G) ADDITIONAL ISSUER INFORMATION. . . . . . . . . . . . . . . . . 13
(H) FUTURE REPORTS TO THE INITIAL PURCHASERS . . . . . . . . . . . 13
(I) NO INTEGRATION . . . . . . . . . . . . . . . . . . . . . . . . 13
(J) LEGENDED SECURITIES. . . . . . . . . . . . . . . . . . . . . . 13
(K) PORTAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(L) LUXEMBOURG LISTING . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4. PAYMENT OF EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5. CONDITIONS OF THE OBLIGATIONS OF THE INITIAL PURCHASERS. . . . . . . . 14
(A) ACCOUNTANTS' COMFORT LETTER. . . . . . . . . . . . . . . . . . 14
(B) NO MATERIAL ADVERSE CHANGE OR RATINGS AGENCY
CHANGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(C) OPINION OF COUNSEL FOR THE COMPANY . . . . . . . . . . . . . . 15
(D) OPINION OF COUNSEL FOR THE INITIAL PURCHASERS. . . . . . . . . 15
(E) OFFICERS' CERTIFICATE. . . . . . . . . . . . . . . . . . . . . 15
(F) BRING-DOWN COMFORT LETTER. . . . . . . . . . . . . . . . . . . 15
(G) PORTAL AND LUXEMBOURG STOCK EXCHANGE LISTINGS. . . . . . . . . 15
(H) REGISTRATION RIGHTS AGREEMENTS . . . . . . . . . . . . . . . . 15
(I) ADDITIONAL DOCUMENTS . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6. REIMBURSEMENT OF INITIAL PURCHASERS' EXPENSES. . . . . . . . . . . . . 16
SECTION 7. OFFER, SALE AND RESALE PROCEDURES. . . . . . . . . . . . . . . . . . . 16
SECTION 8. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(A) INDEMNIFICATION OF THE INITIAL PURCHASERS. . . . . . . . . . . 17
(B) INDEMNIFICATION OF THE COMPANY, ITS DIRECTORS
AND OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . 18
(C) NOTIFICATIONS AND OTHER INDEMNIFICATION
PROCEDURES . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(D) SETTLEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 9. CONTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 10. TERMINATION OF THIS AGREEMENT. . . . . . . . . . . . . . . . . . . . . 21
SECTION 11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE DELIVERY. . . . . . . . . . 21
SECTION 12. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 13. SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 14. PARTIAL UNENFORCEABILITY . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 15. GOVERNING LAW PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 16. DEFAULT OF ONE OR MORE OF THE SEVERAL INITIAL
PURCHASERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 17. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 18. AGREEMENT AMONG INITIAL PURCHASERS . . . . . . . . . . . . . . . . . . 23
ii
Purchase Agreement
April 15, 1999
NATIONSBANC MONTGOMERY SECURITIES LLC
BANK OF AMERICA INTERNATIONAL LIMITED
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
DONALDSON, LUFKIN & JENRETTE INTERNATIONAL
As Initial Purchasers
c/o NATIONSBANC MONTGOMERY SECURITIES LLC
231 South LaSalle Street, 18th Floor
Chicago, Illinois 60697
Ladies and Gentlemen:
Introduction. Dura Operating Corp., a Delaware corporation (the
"Company), proposes to issue and sell to (i) NationsBanc Montgomery Securities
LLC and Donaldson, Lufkin & Jenrette Securities Corporation (the "Dollar Notes
Initial Purchasers") an aggregate of $300,000,000 in principal amount of its 9%
Senior Subordinated Notes due 2009 (the "Dollar Notes") to be issued pursuant to
the provisions of an indenture (the "Dollar Notes Indenture") to be dated as of
the Closing Date (as defined below) between the Company, Dura Automotive
Systems, Inc., the direct parent corporation of the Company ("DASI"), Dura
Automotive Systems, Inc. Column Shifter Operations, Universal Tool & Stamping
Company Inc., Dura Automotive Systems Cable Operations, Inc., Adwest
Electronics, Inc., Adwest Western Automotive, Inc., X.E. Co., Excel of
Tennessee, L.P., Excel Corporation, Excel Industries of Michigan, Inc., Anderson
Industries, Inc., Atwood Industries, Inc., Hydro Flame Corporation, Atwood
Automotive Inc., Mark I Molded Plastics, Inc. and Mark I Molded Plastics of
Tennessee, Inc. (collectively with DASI, the "Guarantors") and U.S. Bank Trust
National Association, as trustee (the "Dollar Notes Trustee") and (ii) Bank of
America International Limited and Donaldson, Lufkin & Jenrette Securities
International (the "Euro Notes Initial Purchasers," and together with the Dollar
Notes Initial Purchasers, the "Initial Purchasers") an aggregate of EURO
100,000,000 in principal amount of its 9% Senior Subordinated Notes due 2009
(the "Euro Notes," and together with the Dollar Notes, the "Notes") to be issued
pursuant to the provisions of an indenture (the "Euro Notes Indenture," and
together with the Dollar Notes Indenture, the "Indenture") to be dated as of the
Closing Date between the Company and the Guarantors and U.S. Bank Trust National
Association, as trustee (the "Euro Notes Trustee"). NationsBanc Montgomery
Securities LLC and Donaldson, Lufkin and Jenrette Securities Corporation have
agreed to act as the Initial Purchasers in connection with the offering and sale
of the Dollar Notes, and Bank of America International Limited and Donaldson,
Lufkin and Jenrette International have agreed to act as the Initial Purchasers
in connection with the offering and sale of the Euro Notes.
Dollar Notes issued in book-entry form will be issued in the name
of Cede & Co., as nominee of The Depository Trust Company (the "Depositary")
pursuant to a DTC Agreement, to be dated as of the Closing Date (as defined in
Section 2) (the "DTC Agreement"), among the Company, the Trustee and the
Depositary. Euro Notes issued in book-entry form will be deposited at
Industrial Bank of Japan (Luxembourg) S.A. in London as depositary (such
capacity, the "Euro Depositary") for the Euroclear System ("Euroclear") pursuant
to an agreement (the "Euro Depositary Agreement") among the Company, the Trustee
and the Paying Agent.
The holders of the Notes will be entitled to the benefits of the
Dollar Notes Registration Rights Agreement and the Euro Notes Registration
Rights Agreement, as applicable, (collectively, the "Registration Rights
Agreements" and, each, individually, a "Registration Rights Agreement") to be
dated the Closing Date, substantially in the form of Exhibits B-1 and B-2
hereto, pursuant to which the Company
will agree to file, within 60 days of the Closing Date, a registration statement
with the Commission (as defined below) registering the Exchange Offers (as
defined below) under the Securities Act (as defined below).
The payment of principal of, premium and Liquidated Damages (as
defined in the Indentures), if any, and interest on the Notes and the Exchange
Notes (as defined below) will be fully and unconditionally guaranteed on a
senior unsecured basis, jointly and severally, by the Guarantors and any
subsidiary of the Company formed or acquired after the Closing Date that
executes an additional guarantee in accordance with the terms of the Indentures,
and their respective successors and assigns, pursuant to their guaranties (the
"Guaranties"). The Notes and the Guaranties attached thereto are herein
collectively referred to as the "Securities"; and the Exchange Notes and the
Guaranties attached thereto are herein collectively referred to as the "Exchange
Securities".
The Company understands that the Initial Purchasers propose to
make an offering of the Securities on the terms and in the manner set forth
herein and in the Offering Memorandum (as defined below) and agrees that the
Initial Purchasers may resell, subject to the conditions set forth herein, all
or a portion of the Securities to purchasers (the "Subsequent Purchasers") at
any time after the date of this Agreement. The Securities are to be offered and
sold to or through the Initial Purchasers without being registered with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933 (as amended, the "Securities Act," which term, as used herein, includes
the rules and regulations of the Commission promulgated thereunder), in reliance
upon exemptions therefrom. The terms of the Securities and the Indentures will
require that investors that acquire Securities expressly agree that Securities
may only be resold or otherwise transferred, after the date hereof, if such
Securities are registered for sale under the Securities Act or if an exemption
from the registration requirements of the Securities Act is available (including
the exemptions afforded by Rule 144A ("Rule 144A") or Regulation S
("Regulation S") thereunder).
The Company has prepared and delivered to each Initial Purchaser
copies of a Preliminary Offering Memorandum, dated March 31, 1999 (the
"Preliminary Offering Memorandum"), and has prepared and will deliver to each
Initial Purchaser, copies of the Offering Memorandum, dated April 15, 1999,
describing the terms of the Securities, each for use by such Initial Purchaser
in connection with its solicitation of offers to purchase the Securities. As
used herein, the "Offering Memorandum" shall mean, with respect to any date or
time referred to in this Agreement, the Company's Offering Memorandum, dated
April 15, 1999, including amendments or supplements thereto, including the
international supplement thereto, any exhibits thereto and the Incorporated
Documents (as defined by Section 1(e) below), in the most recent form that has
been prepared and delivered by the Company to the Initial Purchasers in
connection with their solicitation of offers to purchase Securities. Further,
any reference to the Preliminary Offering Memorandum or the Offering Memorandum
shall be deemed to refer to and include any Additional Issuer Information (as
defined in Section 3(g)) furnished by the Company prior to the completion of the
distribution of the Securities.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Offering Memorandum (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which are incorporated by reference in the Offering Memorandum; and
all references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934 (as amended, the "Exchange Act," which term,
as used herein, includes the rules and regulations of the Commission promulgated
thereunder) which is incorporated or deemed to be incorporated by reference in
the Offering Memorandum.
The Company and the Guarantors hereby confirm their agreements
with the Initial Purchasers as follows:
2
Section 1. Representations and Warranties. The Company and the
Guarantors, jointly and severally, hereby represent, warrant and covenant to
each Initial Purchaser as follows:
(a) NO REGISTRATION REQUIRED. Subject to compliance by the
Initial Purchasers with the representations and warranties set forth in
Section 2(f) hereof and with the procedures set forth in Section 7
hereof, it is not necessary in connection with the offer, sale and
delivery of the Securities to the Initial Purchasers and to each
Subsequent Purchaser in the manner contemplated by this Agreement and the
Offering Memorandum to register the Securities under the Securities Act
or, until such time as the Exchange Securities are issued pursuant to an
effective registration statement, to qualify the Indentures under the
Trust Indenture Act of 1939 (the "Trust Indenture Act," which term, as
used herein, includes the rules and regulations of the Commission
promulgated thereunder).
(b) NO INTEGRATION OF OFFERINGS OR GENERAL SOLICITATION. The
Company has not, directly or indirectly, solicited any offer to buy or
offered to sell, and will not, directly or indirectly, solicit any offer
to buy or offer to sell, in the United States or to any United States
citizen or resident, any security which is or would be integrated with
the sale of the Securities in a manner that would require the Securities
to be registered under the Securities Act. None of the Company, its
affiliates (as such term is defined in Rule 501(b) under the Securities
Act (each, an "Affiliate")), or, to the Company's knowledge, any person
acting on its or any of their behalf (other than the Initial Purchasers,
as to whom the Company makes no representation or warranty) has engaged
or will engage, in connection with the offering of the Securities, in any
form of general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act. With respect to those Securities
sold in reliance upon Regulation S, (i) none of the Company, its
Affiliates or, to the Company's knowledge, any person acting on its or
their behalf (other than the Initial Purchasers, as to whom the Company
makes no representation or warranty) has engaged or will engage in any
directed selling efforts within the meaning of Regulation S and (ii) each
of the Company and its Affiliates and, to the Company's knowledge, any
person acting on its or their behalf (other than the Initial Purchasers,
as to whom the Company makes no representation or warranty) has complied
and will comply with the offering restrictions set forth in Regulation S.
(c) ELIGIBILITY FOR RESALE UNDER RULE 144A. The Securities are
eligible for resale pursuant to Rule 144A and will not be, at the Closing
Date, of the same class as securities listed on a national securities
exchange registered under Section 6 of the Exchange Act or quoted in a
U.S. automated interdealer quotation system.
(d) THE OFFERING MEMORANDUM. The Offering Memorandum does not,
and at the Closing Date will not, include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading; PROVIDED that this representation,
warranty and agreement shall not apply to statements in or omissions from
the Offering Memorandum made in reliance upon and in conformity with
information furnished to the Company in writing by any Initial Purchaser
through NationsBanc Montgomery Securities LLC expressly for use in the
Offering Memorandum. Each of the Preliminary Offering Memorandum and the
Offering Memorandum, as of its date, contains all the information
specified in, and meeting the requirements of, Rule 144A(d)(4). The
Company has not distributed and will not distribute, prior to the later
of the Closing Date and the completion of the Initial Purchasers'
distribution of the Securities, any offering material in connection with
the offering and sale of the Securities other than a Preliminary Offering
Memorandum or the Offering Memorandum.
(e) INCORPORATED DOCUMENTS. The Offering Memorandum
incorporates by reference the Current Report of the Company on Form 8-K
filed with the Commission dated May 14, 1998, as amended on August 31,
1998 and June 12, 1998, the Current Reports of Excel Industries Inc. on
Form 8-K filed with the Commission on September 14 and November 19, 1998
and as amended on November 12 and December 15, 1998 and the Company's
Prospectus, dated
3
June 11, 1998, filed under Rule 424(b). The documents incorporated or
deemed to be incorporated by reference in the Offering Memorandum at the
time they were or hereafter are filed with the Commission (collectively,
the "Incorporated Documents") complied and will comply in all material
respects with the requirements of the Exchange Act.
(f) THE PURCHASE AGREEMENT. This Agreement has been duly
authorized, executed and delivered by, and is a valid and binding
agreement of, the Company and the Guarantors, enforceable in accordance
with its terms, except as rights to indemnification hereunder may be
limited by applicable law and except as the enforcement hereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies of
creditors or by general equitable principles.
(g) THE REGISTRATION RIGHTS AGREEMENTS, DTC AGREEMENT AND EURO
DEPOSITARY AGREEMENT. At the Closing Date, each of the Registration
Rights Agreements, the DTC Agreement and the Euro Depositary Agreement
will be duly authorized, executed and delivered by, and will be a valid
and binding agreement of, the Company and the Guarantors, enforceable in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies of
creditors or by general equitable principles and except as rights to
indemnification under the Registration Rights Agreements may be limited
by applicable law. Pursuant to the Registration Rights Agreements, the
Company will agree to file with the Commission, under the circumstances
set forth therein, (i) a registration statement under the Securities Act
relating to: (A) another series of debt securities of the Company with
terms substantially identical to the Dollar Notes (the "Dollar Exchange
Notes") to be offered in exchange for the Dollar Notes (the "Dollar
Exchange Offer"), and (B) another series of debt securities of the
Company with terms substantially identical to the Euro Notes (the "Euro
Exchange Notes," and together with the Dollar Exchange Notes, the
"Exchange Notes") to be offered in exchange for the Euro Notes (the "Euro
Exchange Offer," and together with the Dollar Exchange Offer, the
"Exchange Offers") and (ii) to the extent required by the Registration
Rights Agreements, a shelf registration statement pursuant to Rule 415 of
the Securities Act relating to the resale by certain holders of the
Dollar Notes and the Euro Notes, as the case may be, and in each case, to
use its reasonable best efforts to cause such registration statements to
be declared effective.
(h) AUTHORIZATION OF THE SECURITIES AND THE EXCHANGE
SECURITIES. (i) The Dollar Notes and the Euro Notes to be purchased by
the Dollar Notes Initial Purchasers and the Euro Notes Initial
Purchasers, respectively, from the Company are in the form contemplated
by the applicable Indenture, have been duly authorized for issuance and
sale pursuant to this Agreement and the applicable Indenture and, at the
Closing Date, will have been duly executed by the Company and, when
authenticated in the manner provided for in the applicable Indenture and
delivered against payment of the purchase price therefor, will constitute
valid and binding agreements of the Company and the Guarantors
enforceable in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles and will be
entitled to the benefits of the applicable Indenture. (ii) The Dollar
Exchange Notes and the Euro Exchange Notes have been duly and validly
authorized for issuance by the Company, and when issued and authenticated
in accordance with the terms of the applicable Indenture, the applicable
Registration Rights Agreement and the applicable Exchange Offer, will
constitute valid and binding obligations of the Company and the
Guarantors enforceable in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, or similar laws relating to or affecting
enforcement of the rights and remedies of creditors or by general
principles of equity and will be entitled to the benefits of the
Indentures. (iii) The Guaranties of the Notes and the Exchange Notes are
in the respective forms contemplated by the Indentures, have been duly
authorized for issuance and sale pursuant to this Agreement and the
Indentures and, at the Closing Date, the Guaranties of the Notes will
have been duly executed by each of the applicable
4
Guarantors and, when the Dollar Notes and the Euro Notes have been
authenticated in the manner provided for in the applicable Indenture and
delivered against payment of the purchase price therefor, will constitute
valid and binding agreements of the Guarantors, enforceable in accordance
with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by
general equitable principles and will be entitled to the benefits of the
applicable Indenture.
(i) AUTHORIZATION OF THE INDENTURES. The Indentures have been
duly authorized by the Company and the Guarantors and, at the Closing
Date, will have been duly executed and delivered by the Company and the
Guarantors and will constitute valid and binding agreements of the
Company and the Guarantors, enforceable in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
or affecting the rights and remedies of creditors or by general equitable
principles.
(j) DESCRIPTION OF THE SECURITIES AND THE INDENTURES. The
Notes, the Exchange Notes, the Guaranties of the Notes and the Exchange
Notes and the Indentures will conform in all material respects to the
respective statements relating thereto contained in the Offering
Memorandum.
(k) NO MATERIAL ADVERSE CHANGE. Except as otherwise disclosed
in the Offering Memorandum, subsequent to the respective dates as of
which information is given in the Offering Memorandum: (i) there has been
no material adverse change, or any development that could reasonably be
expected to result in a material adverse change, in the financial
condition, or in the earnings, business, operations or prospects, whether
or not arising from transactions in the ordinary course of business, of
the Company and its subsidiaries, considered as one entity (any such
change is called a "Material Adverse Change"); (ii) the Company and its
subsidiaries, considered as one entity, have not incurred any material
liability or obligation, indirect, direct or contingent, not in the
ordinary course of business nor entered into any material transaction or
agreement not in the ordinary course of business; and (iii) there has
been no dividend or distribution of any kind declared, paid or made by
the Company or, except for dividends paid to the Company or other
subsidiaries, any of its subsidiaries on any class of capital stock or
repurchase or redemption by the Company or any of its subsidiaries of any
class of capital stock.
(l) INDEPENDENT ACCOUNTANTS. Arthur Andersen LLP, who have
expressed their opinion with respect to the financial statements (which
term as used in this Agreement includes the related notes thereto) of
DASI included in the Offering Memorandum are independent public or
certified public accountants within the meaning of Regulation S-X under
the Securities Act and the Exchange Act. PricewaterhouseCoopers LLP, who
have expressed their opinion with respect to the financial statements
(which term as used in this Agreement includes the related notes thereto)
of Excel Industries, Inc. included in the Offering Memorandum are
independent public or certified public accountants within the meaning of
Regulation S-X under the Securities Act and the Exchange Act. KPMG Audit
Plc, who have expressed their opinion with respect to the financial
statements (which term as used in this Agreement includes the related
notes thereto) of Adwest Automotive Plc included in the Offering
Memorandum are independent public or certified public accountants within
the meaning of Regulation S-X under the Securities Act and the Exchange
Act.
(m) PREPARATION OF THE FINANCIAL STATEMENTS. The financial
statements of DASI, together with the related notes, included in the
Offering Memorandum present fairly the consolidated financial position of
DASI and its subsidiaries as of and at the dates indicated and the
results of their operations and cash flows for the periods specified. To
our knowledge, the financial statements of Excel Industries, Inc. and
Adwest Automotive Plc, together with the related notes thereto, included
in the Offering Memorandum present fairly the consolidated
5
financial position of Excel Industries, Inc. and its subsidiaries and
Adwest Automotive Plc and its subsidiaries, respectively, as of and at
the dates indicated and the results of their operations and cash flows
for the periods specified. Such financial statements of DASI and Excel
have been prepared in conformity with generally accepted accounting
principles as applied in the United States applied on a consistent basis
throughout the periods involved, except as may be expressly stated in the
related notes thereto. The financial statements of Adwest Automotive Plc
have been prepared in conformity with accounting principles generally
accepted in the United Kingdom applied on a basis consistent throughout
the periods involved, except as may be expressly stated in the related
notes thereto. The historical financial data set forth in the Offering
Memorandum under the captions "Offering Memorandum Summary--Summary
Historical and Proforma Financial Data" and "Selected Consolidated
Financial Data" fairly present the information set forth therein on a
basis consistent with that of the audited financial statements contained
in the Offering Memorandum. The pro forma consolidated financial
statements of DASI and its subsidiaries and the related notes thereto
included under the caption "Offering Memorandum Summary--Summary
Historical and Pro Forma Financial Data", "Unaudited Proforma Financial
Statements" and elsewhere in the Offering Memorandum present fairly the
information contained therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly presented on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(n) INCORPORATION AND GOOD STANDING OF THE COMPANY AND ITS
SUBSIDIARIES. Each of the Company, the Guarantors and each other
Significant Subsidiary (as that term is defined in Rule 1-02(w) of
Regulation S-X) has been duly incorporated or formed and is validly
existing in good standing under the laws of the jurisdiction of its
organization and has power and authority to own, lease and operate its
properties and to conduct its business as described in the Offering
Memorandum and, in the case of the Company and the Guarantors to enter
into and perform their respective obligations under each of this
Agreement, the Registration Rights Agreements, the DTC Agreement, the
Euro Depositary Agreement, the Notes, the Exchange Notes and the
Indentures. Each of the Company, the Guarantors and each other
Significant Subsidiary is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except for such
jurisdictions where the failure to so qualify or to be in good standing
would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Change. All of the issued and outstanding
capital stock of the Guarantors and each other Significant Subsidiary has
been duly authorized and validly issued, is fully paid and nonassessable
and is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance or
claim (except for those set forth in the Offering Memorandum and such
other security interest, mortgage, pledge, lien, encumbrance or claim
that would not reasonably be expected to have a Material Adverse Change).
The Company does not own or control, directly or indirectly, any
corporation, association or other entity other than the subsidiaries
listed in Exhibit 21 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1998.
(o) CAPITALIZATION AND OTHER CAPITAL STOCK MATTERS. At
December 31, 1998, on a consolidated basis, after giving pro forma effect
to the issuance and sale of the Notes pursuant hereto, DASI would have an
authorized and outstanding capitalization as set forth in the Offering
Memorandum under the caption "Capitalization" (other than for subsequent
issuances of capital stock, if any, pursuant to employee benefit plans
described in the Offering Memorandum or upon exercise of outstanding
options described in the Offering Memorandum). The Class A Common Stock
and Class B Common Stock (the "Common Stock") conform in all material
respects to the description thereof set forth in the Offering Memorandum.
All of the outstanding shares of Common Stock have been duly authorized
and validly issued, are fully paid and nonassessable and have been issued
in compliance with federal and state securities laws. None of the
6
outstanding shares of Common Stock were issued in violation of any
preemptive rights, rights of first refusal or other similar rights to
subscribe for or purchase securities of the Company. There are no
authorized or outstanding options, warrants, preemptive rights, rights of
first refusal or other rights to purchase, or equity or debt securities
convertible into or exchangeable or exercisable for, any capital stock of
the Company or any of its subsidiaries other than those described in the
Offering Memorandum. The description of the Company's stock option,
stock purchase and other stock plans or arrangements, and the options or
other rights granted thereunder, set forth in the Offering Memorandum
describes such plans, arrangements, options and rights in all material
respects.
(p) NON-CONTRAVENTION OF EXISTING INSTRUMENTS; NO FURTHER
AUTHORIZATIONS OR APPROVALS REQUIRED. Neither the Company nor any of the
Guarantors or any other Significant Subsidiary is in violation of its
charter or by-laws or is in default (or, with the giving of notice or
lapse of time, would be in default) ("Default") under any indenture,
mortgage, loan or credit agreement, note, contract, franchise, lease or
other instrument to which the Company, the Guarantors or any other
Significant Subsidiary is a party or by which it or any of them may be
bound (including, without limitation, the Company's New Credit Facility
(as defined in the Offering Memorandum)), or to which any of the property
or assets of the Company, the Guarantors or any of its Significant
Subsidiaries is subject (each, an "Existing Instrument"), except for such
Defaults as would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Change. The Company's and the
Guarantors' execution, delivery and performance of this Agreement, the
Registration Rights Agreements, the DTC Agreement, the Euro Depositary
Agreement and the Indentures, and the issuance and delivery of the Notes
or the Exchange Notes, and consummation of the transactions contemplated
hereby and thereby and by the Offering Memorandum (i) have been duly
authorized by all necessary action and will not result in any violation
of the provisions of the charter or by-laws of the Company, the
Guarantors or any other Significant Subsidiary of the Company, (ii) will
not conflict with or constitute a breach of, or Default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company, the Guarantors or any other
Significant Subsidiary of the Company pursuant to, or require the consent
of any other party to, any Existing Instrument, except for such
conflicts, breaches, Defaults, liens, charges or encumbrances as would
not, individually or in the aggregate, reasonably be expected to result
in a Material Adverse Change and (iii) will not result in any violation
of any law, administrative regulation or administrative or court decree
applicable to the Company, the Guarantors or any subsidiary of the
Company, except such violations of law, administrative regulation or
administrative or court decree that would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Change.
No consent, approval, authorization or other order of, or registration or
filing with, any court or other governmental or regulatory authority or
agency, is required for the Company's or the Guarantors' execution,
delivery and performance of this Agreement, the Registration Rights
Agreements, the DTC Agreement, the Euro Depositary Agreement or the
Indentures, or the issuance and delivery of the Notes or the Exchange
Notes, or consummation of the transactions contemplated hereby and
thereby and by the Offering Memorandum, except (i) such as have been
obtained or made by the Company and are in full force and effect under
the Securities Act, applicable state securities or blue sky laws or (ii)
such as may be required by federal and state securities laws with respect
to the Company's obligations under the Registration Rights Agreements.
(q) NO MATERIAL ACTIONS OR PROCEEDINGS. Except as otherwise
disclosed in the Offering Memorandum, there are no legal or governmental
actions, suits or proceedings pending or, to the best of the Company's
knowledge, threatened (i) against or affecting the Company, the
Guarantors or any other Significant Subsidiaries, (ii) which has as the
subject thereof any property owned or leased by, the Company, the
Guarantors or any other Significant Subsidiaries, where in any such case
(A) there is a reasonable possibility that such action, suit or
proceeding might be determined adversely to the Company, the Guarantors
or such Significant Subsidiary and (B) any such action, suit or
proceeding, if so determined adversely, would reasonably be expected to
result
7
in a Material Adverse Change or adversely affect the consummation of the
transactions contemplated by this Agreement. No material labor dispute
with the employees of the Company, the Guarantors or any other
Significant Subsidiary, exists or, to the best of the Company's
knowledge, is threatened or imminent.
(r) INTELLECTUAL PROPERTY RIGHTS. The Company and its
subsidiaries own or possess those trademarks, trade names, patent rights,
copyrights, licenses, approvals, trade secrets and other similar rights
(collectively, "Intellectual Property Rights") that are material to the
conduct their businesses as now conducted; and the expected expiration of
any of such Intellectual Property Rights would not reasonably be expected
to result in a Material Adverse Change. Neither the Company nor any of
its subsidiaries has received any notice of infringement or conflict with
asserted Intellectual Property Rights of others, which infringement or
conflict, if the subject of an unfavorable decision, would reasonably be
expected to result in a Material Adverse Change.
(s) ALL NECESSARY PERMITS, ETC. Except as otherwise disclosed
in the Offering Memorandum, the Company, the Guarantors and each other
Significant Subsidiary possess all material certificates, authorizations
or permits necessary to conduct their respective businesses, and neither
the Company nor any subsidiary has received any notice of proceedings
relating to the revocation or modification of, or non-compliance with,
any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
could reasonably be expected to result in a Material Adverse Change.
(t) TITLE TO PROPERTIES. DASI and each of its subsidiaries has
good and marketable title to all the properties and assets reflected as
owned in the financial statements referred to in Section 1(m) above (or
elsewhere in the Offering Memorandum), in each case free and clear of any
security interests, mortgages, liens, encumbrances, equities, claims and
other defects, except as otherwise disclosed in the Offering Memorandum
or such as do not materially interfere with the use made or proposed to
be made of such property by the Company or such subsidiary. The real
property, improvements, equipment and personal property held under lease
by the Company or any subsidiary are held under valid and enforceable
leases, with such exceptions as are not material and do not materially
interfere with the use made or proposed to be made of such real property,
improvements, equipment or personal property by the Company or such
subsidiary.
(u) TAX LAW COMPLIANCE. DASI and its consolidated subsidiaries
have filed all necessary federal, state and foreign income and franchise
tax returns and have paid all taxes required to be paid by any of them
and, if due and payable, any related or similar assessment, fine or
penalty levied against any of them except as may be being contested in
good faith and by appropriate proceedings. The Company has made adequate
charges, accruals and reserves in the applicable financial statements
referred to in Section 1(m) above in respect of all federal, state and
foreign income and franchise taxes for all periods as to which the tax
liability of the Company or any of its consolidated subsidiaries has not
been finally determined.
(v) COMPANY NOT AN "INVESTMENT COMPANY". The Company is not,
and after receipt of payment for the Notes will not be, an "investment
company" within the meaning of Investment Company Act and will conduct
its business in a manner so that it will not become subject to the
Investment Company Act.
(w) NO PRICE STABILIZATION OR MANIPULATION. The Company has
not taken and will not take, directly or indirectly, any action designed
to or that might be reasonably expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Notes.
(x) SOLVENCY. The Company is, and immediately after the
Closing Date will be, Solvent. As used herein, the term "Solvent" means,
with respect to the Company on a particular
8
date, that on such date (i) the fair market value of the assets of the
Company is greater than the total amount of liabilities (including
contingent liabilities) of the Company, (ii) the present fair salable
value of the assets of the Company is greater than the amount that will
be required to pay the probable liabilities of the Company on its debts
as they become absolute and matured, (iii) the Company is able to realize
upon its assets and pay its debts and other liabilities, including
contingent obligations, as they mature and (iv) the Company does not have
unreasonably small capital.
(y) NO UNLAWFUL CONTRIBUTIONS OR OTHER PAYMENTS. Except as
otherwise disclosed in the Offering Memorandum, neither the Company nor
any of its subsidiaries nor, to the best of the Company's knowledge, any
employee or agent of the Company or any subsidiary, has made any
contribution or other payment to any official of, or candidate for, any
federal, state or foreign office in violation of any law.
(z) COMPANY'S ACCOUNTING SYSTEM. The Company maintains a
system of accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with management's
general or specific authorization; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles as applied in the United
States and to maintain accountability for assets; (iii) access to assets
is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(aa) COMPLIANCE WITH ENVIRONMENTAL LAWS. Except as otherwise
disclosed in the Offering Memorandum or as would not, individually or in
the aggregate, reasonably be expected to result in a Material Adverse
Change (i) neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign law or regulation
relating to pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata) or wildlife, including without
limitation, laws and regulations relating to emissions, discharges,
releases or threatened releases of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum and petroleum
products (collectively, "Materials of Environmental Concern"), or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Materials of
Environmental Concern (collectively, "Environmental Laws"), which
violation includes, but is not limited to, noncompliance with any permits
or other governmental authorizations required for the operation of the
business of the Company or its subsidiaries under applicable
Environmental Laws, or noncompliance with the terms and conditions
thereof, nor has the Company or any of its subsidiaries received any
written communication, whether from a governmental authority, citizens
group, employee or otherwise, that alleges that the Company or any of its
subsidiaries is in violation of any Environmental Law; (ii) there is no
claim, action or cause of action filed with a court or governmental
authority, no investigation with respect to which the Company has
received written notice, and no written notice by any person or entity
alleging potential liability for investigatory costs, cleanup costs,
governmental responses costs, natural resources damages, property
damages, personal injuries, attorneys' fees or penalties arising out of,
based on or resulting from the presence, or release into the environment,
of any Material of Environmental Concern at any location owned, leased or
operated by the Company or any of its subsidiaries, now or in the past
(collectively, "Environmental Claims"), pending or, to the best of the
Company's knowledge, threatened against the Company or any of its
subsidiaries or any person or entity whose liability for any
Environmental Claim the Company or any of its subsidiaries has retained
or assumed either contractually or by operation of law; and (iii) to the
best of the Company's knowledge, there are no past or present actions,
activities, circumstances, conditions, events or incidents, including,
without limitation, the release, emission, discharge, presence or
disposal of any Material of Environmental Concern, that reasonably could
result in a violation of any Environmental Law or form the basis of a
potential Environmental Claim against the Company or any of its
subsidiaries or against any person or entity whose liability for any
9
Environmental Claim the Company or any of its subsidiaries has retained
or assumed either contractually or by operation of law.
(bb) PERIODIC REVIEW OF COSTS OF ENVIRONMENTAL COMPLIANCE. In
the ordinary course of its business, the Company conducts a periodic
review of the effect of Environmental Laws on the business, operations
and properties of the Company and its subsidiaries, in the course of
which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties). On the basis of such review and the amount of its
established reserves, the Company has reasonably concluded that such
associated costs and liabilities would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Change.
(cc) ERISA COMPLIANCE. The Company and its subsidiaries and any
"employee benefit plan" (as defined under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, "ERISA")) established or
maintained by the Company, its subsidiaries or their "ERISA Affiliates"
(as defined below) are in compliance in all material respects with ERISA
or, if not in material compliance, would not reasonably be expected to
result in Material Adverse Change. "ERISA Affiliate" means, with respect
to the Company or a subsidiary, any member of any group of organizations
described in Sections 414(b), (c), (m) or (o) of the Internal Revenue
Code of 1986, as amended, and the regulations and published
interpretations thereunder (the "Code") of which the Company or such
subsidiary is a member. No "reportable event" (as defined under ERISA)
has occurred or is reasonably expected to occur with respect to any
"employee benefit plan" established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates. No "employee benefit
plan" established or maintained by the Company, its subsidiaries or any
of their ERISA Affiliates, if such "employee benefit plan" were
terminated, would have any material "amount of unfunded benefit
liabilities" (as defined under ERISA). Neither the Company, its
subsidiaries nor any of their ERISA Affiliates has incurred or reasonably
expects to incur any material liability under (i) Title IV of ERISA with
respect to termination of, or withdrawal from, any "employee benefit
plan" or (ii) Sections 412, 4971, 4975 or 4980B of the Code. Each
"employee benefit plan" established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates that is intended to be
qualified under Section 401(a) of the Code is so qualified and nothing
has occurred, whether by action or failure to act, which would cause the
loss of such qualification.
(dd) REGULATION S REQUIREMENTS. The Company, the Guarantors and
their respective affiliates and, to the best of their knowledge, all
persons acting on their behalf (other than the Initial Purchasers, as to
whom the Company and the Guarantors make no representation) have complied
with and will comply with the offering restrictions requirements of
Regulation S in connection with the offering of the Securities outside
the United States and, in connection therewith, the Offering Memorandum
will contain the disclosure required by Rule 902(h).
(ee) REPORTING. Each of the Company and the Guarantors is a
"reporting issuer" as defined in Rule 902 under the Securities Act.
Any certificate signed by an officer of the Company or the
Guarantors and delivered to the Initial Purchasers or to counsel for the
Initial Purchasers shall be deemed to be a representation and warranty by
the Company to each Initial Purchaser as to the matters set forth
therein.
Section 2. Purchase, Sale and Delivery of the Securities.
(a) THE SECURITIES. The Company agrees to issue and sell to
the several Dollar Notes Initial Purchasers, severally and not jointly,
all of the Dollar Notes upon the terms herein set forth. The Company
agrees to issue and sell to the several Euro Notes Initial Purchasers,
severally
10
and not jointly, all of the Euro Notes upon the terms herein set forth.
On the basis of the representations, warranties and agreements herein
contained, and upon the terms but subject to the conditions herein set
forth, the Initial Purchasers agree, severally and not jointly, to
purchase from the Company the aggregate principal amount of Dollar Notes
and Euro Notes set forth opposite their names on SCHEDULE A, at a
purchase price of 97.5% of the principal amount thereof payable on the
Closing Date.
(b) THE CLOSING DATE. Delivery of certificates for the Notes
in definitive form to be purchased by the Initial Purchasers and payment
therefor shall be made at the offices of Gardner, Carton & Douglas, 321
N. Clark St., Chicago, Illinois 60610 (or such other place as may be
agreed to by the Company and the Initial Purchasers) at 10:00 a.m.
Chicago time, on April 22, 1999, or such other time and date as the
Initial Purchasers and the Company shall agree (the time and date of such
closing are called the "Closing Date").
(c) DELIVERY OF THE DOLLAR NOTES. The Company shall deliver,
or cause to be delivered, to NationsBanc Montgomery Securities LLC for
the accounts of the several Dollar Notes Initial Purchasers certificates
for the Dollar Notes at the Closing Date against the irrevocable release
of a wire transfer of immediately available funds for the amount of the
purchase price therefor. The certificates for the Dollar Notes shall be
in such denominations and registered in the name of Cede & Co., as
nominee of the Depository, pursuant to the DTC Agreement, and shall be
made available for inspection on the business day preceding the Closing
Date at a location in Chicago, as the Dollar Notes Initial Purchasers may
designate. Time shall be of the essence, and delivery at the time and
place specified in this Agreement is a further condition to the
obligations of the Dollar Notes Initial Purchasers.
(d) DELIVERY OF EURO NOTES. The Company shall deliver, or
cause to be delivered, to Bank of America International Limited (or as
Bank of America International Limited shall direct) for the accounts of
the several Euro Notes Initial Purchasers one certificate for the Euro
Notes in definitive form (the "Global Euro Note") registered in the name
of Industrial Bank of Japan (Luxembourg) S.A., as depositary for
Euroclear against the irrevocable release of a wire transfer of
immediately available funds for the amount of the purchase price
therefor. The Global Euro Note shall be made available to the Euro Notes
Initial Purchasers for inspection on the business day preceding the
Closing Date at a location in Chicago, as the Euro Notes Initial
Purchasers, may designate. Time shall be of the essence, and delivery at
the time and place specified in this Agreement is a further condition to
the obligations of the Euro Notes Initial Purchasers.
(e) DELIVERY OF OFFERING MEMORANDUM TO THE INITIAL PURCHASERS.
Not later than 12:00 p.m. on the second business day following the date
of this Agreement, the Company shall deliver or cause to be delivered
copies of the Offering Memorandum in such quantities and at such places
as the Initial Purchasers shall reasonably request.
(f) INITIAL PURCHASERS AS QUALIFIED INSTITUTIONAL BUYERS. Each
Initial Purchaser severally and not jointly represents and warrants to,
and agrees with, the Company that it is a "qualified institutional buyer"
within the meaning of Rule 144A (a "Qualified Institutional Buyer").
Section 3. Additional Covenants. The Company and the Guarantors
further covenant and agree with each Initial Purchaser as follows:
(a) INITIAL PURCHASERS' REVIEW OF PROPOSED AMENDMENTS AND
SUPPLEMENTS. Prior to amending or supplementing the Offering Memorandum
(including any amendment or supplement through incorporation by reference
of any report filed under the Exchange Act), the Company shall furnish to
the Initial Purchasers for review a copy of each such proposed amendment
or supplement, and the Company shall not use any such proposed amendment
or supplement to which the Initial Purchasers reasonably object.
11
(b) AMENDMENTS AND SUPPLEMENTS TO THE OFFERING MEMORANDUM AND
OTHER SECURITIES ACT MATTERS. If, prior to the completion of the
placement of the Notes by the Initial Purchasers with the Subsequent
Purchasers, any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Offering Memorandum in order
to make the statements therein, in the light of the circumstances when
the Offering Memorandum is delivered to a purchaser, not misleading, or
if in the written opinion of the Initial Purchasers or counsel for the
Initial Purchasers it is otherwise necessary to amend or supplement the
Offering Memorandum to comply with applicable law, the Company agrees to
promptly prepare (subject to Section 3(a) hereof), and furnish at its own
expense to the Initial Purchasers, amendments or supplements to the
Offering Memorandum so that the statements in the Offering Memorandum as
so amended or supplemented will not, in the light of the circumstances
when the Offering Memorandum is delivered to a purchaser, be misleading
or so that the Offering Memorandum, as amended or supplemented, will
comply with applicable law.
Following the consummation of the Exchange Offers or the
effectiveness of the shelf registration statement and for so long as the
Securities are outstanding if, in the reasonable judgment of the Initial
Purchasers, the Initial Purchasers or any of their affiliates (as such
term is defined in the rules and regulations under the Securities Act)
are required to deliver a prospectus in connection with sales of, or
market-making activities with respect to, such securities, (A) to
periodically amend the applicable registration statement so that the
information contained therein complies with the requirements of
Section 10(a) of the Securities Act, (B) to amend the applicable
registration statement or supplement the related prospectus or the
documents incorporated therein when necessary to reflect any material
changes in the information provided therein so that the registration
statement and the prospectus will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances existing
as of the date the prospectus is so delivered, not misleading and (C) to
provide the Initial Purchasers with copies of each amendment or
supplement filed and such other documents as the Initial Purchasers may
reasonably request.
The Company hereby expressly acknowledges that the indemnification
and contribution provisions of Sections 8 and 9 hereof are specifically
applicable and relate to each offering memorandum, registration
statement, prospectus, amendment or supplement referred to in this
Section 3(b).
(c) COPIES OF THE OFFERING MEMORANDUM. The Company agrees to
furnish the Initial Purchasers, without charge, as many copies of the
Offering Memorandum and any amendments and supplements thereto as they
shall have reasonably requested.
(d) BLUE SKY COMPLIANCE. The Company shall cooperate with the
Initial Purchasers and counsel for the Initial Purchasers to qualify or
register the Notes for sale under (or obtain exemptions from the
application of) the Blue Sky or state securities laws of those
jurisdictions designated by the Initial Purchasers, shall comply with
such laws and shall continue such qualifications, registrations and
exemptions in effect so long as required for the distribution of the
Notes. The Company shall not be required to qualify as a foreign
corporation or to take any action that would subject it to general
service of process in any such jurisdiction where it is not presently
qualified or where it would be subject to taxation as a foreign
corporation. The Company will advise the Initial Purchasers promptly of
the suspension of the qualification or registration of (or any such
exemption relating to) the Notes for offering, sale or trading in any
jurisdiction or any initiation or threat of any proceeding for any such
purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company shall use its best
efforts to obtain the withdrawal thereof at the earliest possible moment.
(e) USE OF PROCEEDS. The Company shall apply the net proceeds
from the sale of the Notes sold by it in the manner described under the
caption "Use of Proceeds" in the Offering Memorandum.
12
(f) THE DEPOSITARY. The Company will cooperate with the
Initial Purchasers and use its best efforts to permit the Securities to
be eligible for clearance and settlement through the facilities of the
Depositary and Euroclear.
(g) ADDITIONAL ISSUER INFORMATION. Prior to the completion of
the placement of the Securities by the Initial Purchasers with the
Subsequent Purchasers, the Company shall file, on a timely basis, with
the Commission and the Nasdaq National Market all reports and documents
required to be filed under Section 13 or 15(d) of the Exchange Act.
Additionally, at any time when the Company is not subject to Section 13
or 15(d) of the Exchange Act, for the benefit of holders and beneficial
owners from time to time of Notes, the Company shall furnish, at its
expense, upon request, to holders and beneficial owners of Notes and
prospective purchasers of Securities information ("Additional Issuer
Information") satisfying the requirements of subsection (d)(4) of Rule
144A.
(h) FUTURE REPORTS TO THE INITIAL PURCHASERS. For so long as
any Notes or Exchange Notes remain outstanding, the Company will furnish
to NationsBanc Montgomery Securities LLC (i) as soon as reasonably
practicable after the end of each fiscal year, copies of the Annual
Report of DASI containing the balance sheet of DASI as of the close of
such fiscal year and statements of income, stockholders' equity and cash
flows for the year then ended and the opinion thereon of DASI's
independent public or certified public accountants; (ii) as soon as
practicable after the filing thereof, copies of each proxy statement,
Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report
on Form 8-K or other report filed by DASI with the Commission, the
National Association of Securities Dealers, Inc. or any securities
exchange; and (iii) as soon as available, copies of any report or
communication of DASI mailed generally to holders of its capital stock or
debt securities (including the holders of the Notes).
(i) NO INTEGRATION. The Company agrees that it will not and
will use its best efforts to cause its Affiliates not to make any offer
or sale of securities of the Company of any class if, as a result of the
doctrine of "integration" referred to in Rule 502 under the Securities
Act, such offer or sale would render invalid (for the purpose of (i) the
sale of the Notes by the Company to the Initial Purchasers, (ii) the
resale of the Notes by the Initial Purchasers to Subsequent Purchasers or
(iii) the resale of the Notes by such Subsequent Purchasers to others)
the exemption from the registration requirements of the Securities Act
provided by Section 4(2) thereof or by Rule 144A or by Regulation S
thereunder or otherwise.
(j) LEGENDED SECURITIES. Each certificate for a Note will bear
the legend contained in "Notice to Investors" in the Offering Memorandum
for the time period and upon the other terms stated in the Offering
Memorandum.
(k) PORTAL. The Company will use its reasonable best efforts
to cause the Notes to be eligible for the National Association of
Securities Dealers, Inc. PORTAL market (the "PORTAL market").
(l) LUXEMBOURG LISTING. The Company will use its reasonable
best efforts to cause the Notes to be listed on the Luxembourg Stock
Exchange.
NationsBanc Montgomery Securities LLC, on behalf of the several
Initial Purchasers, may, in its sole discretion, waive in writing the
performance by the Company of any one or more of the foregoing covenants or
extend the time for their performance.
13
Section 4. Payment of Expenses. The Company agrees to pay all costs,
fees and expenses incurred in connection with the performance of its obligations
hereunder and in connection with the transactions contemplated hereby, including
without limitation (i) all expenses incident to the issuance and delivery of the
Notes (including all printing and engraving costs), (ii) all necessary issue,
transfer and other stamp taxes in connection with the issuance and sale of the
Notes to the Initial Purchasers, (iii) all fees and expenses of the Company's
and the Guarantors' counsel, independent public or certified public accountants
and other advisors, (iv) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of each Preliminary
Offering Memorandum and the Offering Memorandum (including financial statements
and exhibits), and all amendments and supplements thereto, (v) all filing fees,
reasonable attorneys' fees and expenses incurred by the Company or the Initial
Purchasers in connection with qualifying or registering (or obtaining exemptions
from the qualification or registration of, all or any part of the Securities for
offer and sale under the Blue Sky laws and, if requested by the Initial
Purchasers, preparing and printing a "Blue Sky Survey" or memorandum, and any
supplements thereto, advising the Initial Purchasers of such qualifications,
registrations and exemptions, (vi) the fees and expenses of the Dollar Notes
Trustee and the Euro Notes Trustee, including the reasonable fees and
disbursements of counsel for the Dollar Notes Trustee and Euro Notes Trustee in
connection with the Indentures, the Notes and the Exchange Notes, (vii) any fees
payable in connection with the rating of the Notes or the Exchange Notes with
the ratings agencies and the listing of the Notes with the PORTAL market and the
Luxembourg Stock Exchange, (viii) all fees and expenses (including reasonable
fees and expenses of counsel) of the Company and the Guarantors in connection
with approval of the Notes by DTC or Euroclear or Cedelbank for "book-entry"
transfer, (ix) all roadshow expenses of the Company's representatives and
(x) the performance by the Company and the Guarantors of their respective other
obligations under this Agreement. Except as provided in this Section 4,
Section 6, Section 8 and Section 9 hereof, the Initial Purchasers shall pay
their own expenses, including the fees and disbursements of their counsel.
Section 5. Conditions of the Obligations of the Initial Purchasers.
The obligations of the several Initial Purchasers to purchase and pay for the
Dollar Notes and the Euro Notes, as provided herein on the Closing Date shall be
subject to the accuracy of the representations and warranties on the part of the
Company and the Guarantors set forth in Section 1 hereof as of the date hereof
and as of the Closing Date as though then made and to the timely performance by
the Company and the Guarantors of their respective covenants and other
obligations hereunder, and to each of the following additional conditions:
(a) ACCOUNTANTS' COMFORT LETTER. On the date hereof, the
Initial Purchasers shall have received from Arthur Andersen LLP,
independent public or certified public accountants for DASI,
PricewaterhouseCoopers LLP, independent public or certified public
accountants for Excel Industries, Inc. and KPMG Audit Plc, independent
public or certified public accountants for Adwest Automotive Plc, letters
dated the date hereof addressed to the Initial Purchasers, in form and
substance reasonably satisfactory to the Initial Purchasers, containing
statements and information of the type ordinarily included in
accountant's "comfort letters" to Initial Purchasers, delivered according
to Statement of Auditing Standards Nos. 72 and 76 (or any successor
bulletins), with respect to the audited and unaudited financial
statements and certain financial information contained in the Offering
Memorandum.
(b) NO MATERIAL ADVERSE CHANGE OR RATINGS AGENCY CHANGE. For
the period from and after the date of this Agreement and prior to the
Closing Date:
(i) in the judgment of the Initial Purchasers there
shall not have occurred any Material Adverse Change; and
(ii) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any securities of the Company or any of its subsidiaries
by any "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2)
14
under the Securities Act.
(c) OPINION OF COUNSEL FOR THE COMPANY. On the Closing Date
the Initial Purchasers shall have received the opinion of Kirkland &
Ellis, counsel for the Company, dated as of such Closing Date, in form
and substance satisfactory to the Initial Purchasers and their counsel.
(d) OPINION OF COUNSEL FOR THE INITIAL PURCHASERS. On the
Closing Date the Initial Purchasers shall have received the opinion of
Gardner, Carton & Douglas, counsel for the Initial Purchasers, dated as
of such Closing Date, with respect to such matters as may be reasonably
requested by the Initial Purchasers and are customary in this type of
business.
(e) OFFICERS' CERTIFICATE. On the Closing Date the Initial
Purchasers shall have received a written certificate executed by the
Chairman of the Board, Chief Executive Officer or President of the
Company and the Chief Financial Officer or Chief Accounting Officer of
the Company, dated as of the Closing Date, to the effect set forth in
subsection (b)(ii) of this Section 5, and further to the effect that:
(i) for the period from and after the date of this
Agreement and prior to the Closing Date there has not occurred any
Material Adverse Change;
(ii) the representations, warranties and covenants of the
Company and the Guarantors set forth in Section 1 of this
Agreement are true and correct with the same force and effect as
though expressly made on and as of the Closing Date; and
(iii) the Company and the Guarantors have complied in all
material respects with all the agreements and satisfied all the
conditions on their respective parts to be performed or satisfied
at or prior to the Closing Date.
(f) BRING-DOWN COMFORT LETTER. On the Closing Date the Initial
Purchasers shall have received from Arthur Andersen LLP, independent
public or certified public accountants for the Company,
PricewaterhouseCoopers LLP, independent public or certified public
accountants for Excel Industries, Inc. and KPMG Audit Plc, independent
public or certified public accountants for Adwest Automotive Plc, letters
dated such date, in form and substance reasonably satisfactory to the
Initial Purchasers, to the effect that they reaffirm the statements made
in the letters furnished by them pursuant to subsection (a) of this
Section 5, except that the specified date referred to therein for the
carrying out of procedures shall be no more than three business days
prior to the Closing Date.
(g) PORTAL AND LUXEMBOURG STOCK EXCHANGE LISTINGS. At the
Closing Date the Notes shall have been designated for trading on the
PORTAL market and an application shall have been made for listing the
Notes on the Luxembourg Stock Exchange.
(h) REGISTRATION RIGHTS AGREEMENTS. The Company and the
Guarantors shall have entered into the Registration Rights Agreements and
the Initial Purchasers shall have received executed counterparts thereof.
(i) ADDITIONAL DOCUMENTS. On or before the Closing Date, the
Initial Purchasers and counsel for the Initial Purchasers shall have
received such information, documents and opinions as they may reasonably
require for the purposes of enabling them to pass upon the issuance and
sale of the Securities as contemplated herein, or in order to evidence
the accuracy of any of the representations and warranties, or the
satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when
and as required to be
15
satisfied, this Agreement may be terminated by the Initial Purchasers by notice
to the Company at any time on or prior to the Closing Date, which termination
shall be without liability on the part of any party to any other party, except
that Section 4, Section 6, Section 8 and Section 9 shall at all times be
effective and shall survive such termination.
Section 6. Reimbursement of Initial Purchasers' Expenses. If this
Agreement is terminated by the Initial Purchasers pursuant to Section 5, or if
the sale to the Initial Purchasers of the Securities on the Closing Date is not
consummated because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or to comply with any provision hereof,
the Company agrees to reimburse the Initial Purchasers (or such Initial
Purchasers as have terminated this Agreement with respect to themselves),
severally, upon demand for all out-of-pocket expenses that shall have been
reasonably incurred by the Initial Purchasers in connection with the proposed
purchase and the offering and sale of the Securities, including but not limited
to reasonable fees and disbursements of counsel, printing expenses, travel
expenses, postage, facsimile and telephone charges.
Section 7. Offer, Sale and Resale Procedures. Each of the Initial
Purchasers, on the one hand, and the Company and each of the Guarantors, on the
other hand, hereby establish and agree to observe the following procedures in
connection with the offer and sale of the Securities:
(i) OFFERS AND SALES ONLY TO QUALIFIED INSTITUTIONAL
BUYERS. Offers and sales of the Securities will be made only by
the Initial Purchasers or Affiliates thereof qualified to do so in
the jurisdictions in which such offers or sales are made. Each
such offer or sale shall only be made to persons whom the offeror
or seller reasonably believes to be (A) qualified institutional
buyers (as defined in Rule 144A under the Securities Act) or
(B) non-U.S. persons outside the United States to whom the offeror
or seller reasonably believes offers and sales of the Securities
may be made in reliance upon Regulation S under the Securities
Act, upon the terms and conditions set forth in ANNEX I hereto,
which ANNEX I is hereby expressly made a part hereof.
(ii) NO GENERAL SOLICITATION. The Securities will be
offered by approaching prospective Subsequent Purchasers on an
individual basis. No general solicitation or general advertising
(within the meaning of Rule 502(c) under the Securities Act) will
be used in the United States in connection with the offering of
the Securities.
(iii) RESTRICTIONS ON TRANSFER. Upon original issuance by
the Company, and until such time as the same is no longer required
under the applicable requirements of the Securities Act, the
Securities (and all securities issued in exchange therefor or in
substitution thereof, other than the Exchange Securities) shall
bear the following legend:
"THE NOTE (OR ITS PREDECESSORS) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933
(THE "SECURITIES ACT"), AND THE NOTE EVIDENCED HEREBY MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE NOTE EVIDENCED HEREBY IS HEREBY NOTIFIED THAT
THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT. THE
HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE BENEFIT OF
THE COMPANY THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (I)(A) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT), IN A
TRANSACTION MEETING THE
16
REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (B) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (C) OUTSIDE THE UNITED STATES TO A FOREIGN
PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904
OF REGULATION S UNDER THE SECURITIES ACT, OR (D) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT PROVIDED THAT IN THE CASE OF A TRANSFER
PURSUANT TO CLAUSE (D) SUCH TRANSFER IS EFFECTED BY THE
DELIVERY TO THE TRANSFEREE OF DEFINITIVE SECURITIES REGISTERED
IN ITS NAME (OR ITS NOMINEES NAME) IN THE BOOKS MAINTAINED BY
THE REGISTRAR, AND IS SUBJECT TO THE RECEIPT BY THE REGISTRAR
(AND THE COMPANY, IF THEY SO REQUEST) OF A CERTIFICATION OF
THE TRANSFEROR AND AN OPINION OF COUNSEL TO THE EFFECT THAT
SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT,
(II) TO THE COMPANY OR (III) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH
CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
NOTE EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN
(A) ABOVE."
Following the sale of the Securities by the Initial Purchasers to
Subsequent Purchasers pursuant to the terms hereof, the Initial
Purchasers shall not be liable or responsible to the Company for
any losses, damages or liabilities suffered or incurred by the
Company, including any losses, damages or liabilities under the
Securities Act, arising from or relating to any resale or transfer
of any Security.
Section 8. Indemnification.
(a) INDEMNIFICATION OF THE INITIAL PURCHASERS. The Company and
the Guarantors (for purposes of Sections 8, 9 and 10, the term Company
shall include the Guarantors), jointly and severally, agree to indemnify
and hold harmless each Initial Purchaser, its directors, officers and
employees, and each person, if any, who controls any Initial Purchaser
within the meaning of the Securities Act and the Exchange Act against any
loss, claim, damage, liability or expense, as incurred, to which such
Initial Purchaser or such controlling person may become subject, under
the Securities Act, the Exchange Act or other federal or state statutory
law or regulation, or at common law or otherwise (including in settlement
of any litigation, if such settlement is effected with the written
consent of the Company), insofar as such loss, claim, damage, liability
or expense (or actions in respect thereof as contemplated below) arises
out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in the Preliminary Offering Memorandum or
the Offering Memorandum (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and to reimburse each Initial
Purchaser and each such controlling person for any and all expenses
(including the reasonable fees and disbursements of counsel chosen by
NationsBanc Montgomery Securities LLC) as such expenses are reasonably
incurred by such Initial Purchaser or such controlling person in
connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action;
PROVIDED, HOWEVER, that the foregoing indemnity agreement shall not apply
to any loss, claim, damage, liability or expense to the extent, but only
to the extent, arising out of or based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in reliance
upon and in conformity with written information furnished to the Company
by the Initial Purchasers expressly for use in any
17
Preliminary Offering Memorandum or the Offering Memorandum (or any
amendment or supplement thereto); PROVIDED FURTHER, HOWEVER, that the
indemnification contained in this paragraph (a) with respect to the
Preliminary Offering Memorandum shall not inure to the benefit of the
Initial Purchasers (or to the benefit of any person controlling the
Initial Purchasers) on account of any such loss, claim, damage, liability
or expense arising from the sale of the Securities by the Initial
Purchasers to any person if a copy of the Offering Memorandum (as then
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) shall not have been delivered or sent
to such person and each untrue statement of a material fact contained in,
and each omission or alleged omission of a material fact from, such
Preliminary Offering Memorandum was corrected in the Offering Memorandum
(as so amended or supplemented) and it shall have been determined that
any Initial Purchaser and each person, if any, who controls such Initial
Purchasers would not have incurred such losses, claims, damages,
liabilities and expenses had the Offering Memorandum been delivered or
sent. The indemnity agreement set forth in this Section 8(a) shall be in
addition to any liabilities that the Company may otherwise have.
(b) INDEMNIFICATION OF THE COMPANY, ITS DIRECTORS AND OFFICERS.
Each Initial Purchaser agrees, severally and not jointly, to indemnify
and hold harmless the Company and each of its directors and each person,
if any, who controls the Company within the meaning of the Securities Act
or the Exchange Act, against any loss, claim, damage, liability or
expense, as incurred, to which the Company or any such director, or
controlling person may become subject, under the Securities Act, the
Exchange Act, or other federal or state statutory law or regulation, or
at common law or otherwise (including in settlement of any litigation, if
such settlement is effected with the written consent of such Initial
Purchaser), insofar as such loss, claim, damage, liability or expense (or
actions in respect thereof as contemplated below) arises out of or is
based upon any untrue or alleged untrue statement of a material fact
contained in any Preliminary Offering Memorandum or the Offering
Memorandum (or any amendment or supplement thereto), or arises out of or
is based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Offering
Memorandum or the Offering Memorandum (or any amendment or supplement
thereto), in reliance upon and in conformity with written information
furnished to the Company by the Initial Purchasers expressly for use
therein; and to reimburse the Company, or any such director or
controlling person for any legal and other expenses reasonably incurred
by the Company, or any such director or controlling person in connection
with investigating, defending, settling, compromising or paying any such
loss, claim, damage, liability, expense or action. The Company hereby
acknowledges that the only information that the Initial Purchasers have
furnished to the Company expressly for use in any Preliminary Offering
Memorandm or the Offering Memorandum (or any amendment or supplement
thereto) are the statements set forth in the first sentence of the third
paragraph, the first sentence of the fourth paragraph, the fourth
sentence of the sixth paragraph and the eighth paragraph under the
caption "Plan of Distribution" in the Offering Memorandum; and the
Initial Purchasers confirm that such statements are correct. The
indemnity agreement set forth in this Section 8(b) shall be in addition
to any liabilities that each Initial Purchaser may otherwise have.
(c) NOTIFICATIONS AND OTHER INDEMNIFICATION PROCEDURES.
Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against an indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof, but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party for contribution or otherwise than under the indemnity
agreement contained in this Section 8 or to the extent it is not
prejudiced as a proximate result of such failure. In case any such
action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party, the
indemnifying party will be entitled to participate in and, to the extent
that it shall elect, jointly with all other indemnifying parties
18
similarly notified, by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof with counsel reasonably satisfactory
to such indemnified party; PROVIDED, HOWEVER, if the defendants in any
such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that a conflict
may arise between the positions of the indemnifying party and the
indemnified party in conducting the defense of any such action or that
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right
to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to
such indemnified party of such indemnifying party's election so to assume
the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified
party under this Section 8 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel (together with local
counsel), approved by the indemnifying party (NationsBanc Montgomery
Securities LLC in the case of Section 8(b) and Section 9), representing
the indemnified parties who are parties to such action) or (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action, in each of which cases
the fees and expenses of counsel shall be at the expense of the
indemnifying party.
(d) SETTLEMENTS. The indemnifying party under this Section 8
shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a
final nonappealable judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party against any loss, claim,
damage, liability or expense by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by
Section 8(c) hereof, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement or
delivered notice to the indemnified party of its good faith objection to
such claim of indemnification.. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement,
compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified
party is or could have been a party and indemnity was or could have been
sought hereunder by such indemnified party, unless such settlement,
compromise or consent includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
Section 9. Contribution.
If the indemnification provided for in Section 8 is for any reason
held to be unavailable to or otherwise insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount paid or payable by such indemnified party, as incurred, as
a result of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Initial Purchasers,
on the other hand, from the offering of the Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company, on the one hand, and the Initial Purchasers, on the other
hand, in connection with the statements or omissions or inaccuracies in the
19
representations and warranties herein which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and the Initial Purchasers, on the other hand, in connection with the offering
of the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company, and the total discount received by the Initial Purchasers bear to
the aggregate initial offering price of the Securities. The relative fault of
the Company, on the one hand, and the Initial Purchasers, on the other hand,
shall be determined by reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact or any such inaccurate or alleged inaccurate
representation or warranty relates to information supplied by the Company, on
the one hand, or the Initial Purchasers, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 8(c), any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim. The provisions set forth in
Section 8(c) with respect to notice of commencement of any action shall apply if
a claim for contribution is to be made under this Section 9; PROVIDED, HOWEVER,
that no additional notice shall be required with respect to any action for which
notice has been given under Section 8(c) for purposes of indemnification.
The Company and the Initial Purchasers agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation (even if the Initial Purchasers were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Initial
Purchaser shall be required to contribute any amount in excess of the discount
received by such Initial Purchaser in connection with the Securities distributed
by it. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations to contribute pursuant to this Section 9 are several,
and not joint, in proportion to their respective commitments as set forth
opposite their names in SCHEDULE A. For purposes of this Section 9, each
director, officer and employee of an Initial Purchaser and each person, if any,
who controls an Initial Purchaser within the meaning of the Securities Act and
the Exchange Act shall have the same rights to contribution as such Initial
Purchaser, and each director of the Company, and each person, if any, who
controls the Company with the meaning of the Securities Act and the Exchange Act
shall have the same rights to contribution as the Company.
20
Section 10. Termination of this Agreement. Prior to the Closing Date,
this Agreement may be terminated by the Initial Purchasers by notice given to
the Company if at any time (i) trading or quotation in any of the Company's
securities shall have been suspended or limited by the Commission or by the
Nasdaq Stock Market, or trading in securities generally on either the Nasdaq
Stock Market or the New York Stock Exchange shall have been suspended or
limited, or minimum or maximum prices shall have been generally established on
any of such stock exchanges by the Commission or the NASD; (ii) a general
banking moratorium shall have been declared by any federal or New York
authorities; or (iii) there shall have occurred any outbreak or escalation of
national or international hostilities or any crisis or calamity, or any change
in the United States or international financial markets, or any substantial
change or development involving a prospective substantial change in United
States' or international political, financial or economic conditions, as in the
judgment of the Initial Purchasers is material and adverse and makes it
impracticable to market the Securities in the manner and on the terms described
in the Offering Memorandum or to enforce contracts for the sale of securities;
(iv) in the judgment of the Initial Purchasers there shall have occurred any
Material Adverse Change; or (v) the Company shall have sustained a loss by
strike, fire, flood, earthquake, accident or other calamity of such character as
in the judgment of the Initial Purchasers may interfere materially with the
conduct of the business and operations of the Company regardless of whether or
not such loss shall have been insured. Any termination pursuant to this
Section 10 shall be without liability on the part of (a) the Company to any
Initial Purchaser, except that the Company shall be obligated to reimburse the
expenses of the Initial Purchasers pursuant to Sections 4 and 6 hereof, (b) any
Initial Purchaser to the Company, or (c) any party hereto to any other party
except that the provisions of Section 8 and Section 9 shall at all times be
effective and shall survive such termination.
Section 11. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers and of the several Initial Purchasers
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Initial
Purchaser or the Company or any of its or their partners, officers or directors
or any controlling person, as the case may be, and will survive delivery of and
payment for the Securities sold hereunder and any termination of this Agreement.
Section 12. Notices. All communications hereunder shall be in writing
and shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
If to the Initial Purchasers:
NationsBanc Montgomery Securities LLC
231 South LaSalle Street, 18th Floor
Chicago, Illinois 60697
Facsimile: (312) 974-0140
Attention: Brad A. Bernstein
with a copy to:
Gardner, Carton & Douglas
321 North Clark Street
Chicago, Illinois 60610
Facsimile: (312) 644-3381
Attention: Dewey B. Crawford
21
If to the Company or the Guarantors:
Dura Operating Corp.
4508 IDS Center
Minneapolis, Minnesota 55402
Facsimile: (612) 332-2012
Attention: Scott D. Rued
Any party hereto may change the address for receipt of communications by giving
written notice to the others.
Section 13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto, including any substitute Initial
Purchasers pursuant to Section 16 hereof, and to the benefit of the employees,
officers and directors and controlling persons referred to in Section 8 and
Section 9, and in each case their respective successors, and no other person
will have any right or obligation hereunder. The term "successors" shall not
include any purchaser of the Securities as such from any of the Initial
Purchasers merely by reason of such purchase.
Section 14. Partial Unenforceability. The invalidity or
unenforceability of any Section, paragraph or provision of this Agreement shall
not affect the validity or enforceability of any other Section, paragraph or
provision hereof. If any Section, paragraph or provision of this Agreement is
for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
Section 15. GOVERNING LAW PROVISIONS. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE.
Section 16. Default of One or More of the Several Initial Purchasers.
If any one or more of the several Dollar Notes Initial Purchasers shall fail or
refuse to purchase Dollar Notes that it or they have agreed to purchase
hereunder on the Closing Date, and the aggregate number of Dollar Notes which
such defaulting Dollar Notes Initial Purchaser or Dollar Notes Initial
Purchasers agreed but failed or refused to purchase does not exceed 10% of the
aggregate number of the Dollar Notes to be purchased on such date, the other
Initial Purchasers shall be obligated, severally, in the proportions that the
number of Dollar Notes set forth opposite their respective names on SCHEDULE A
bears to the aggregate number of Dollar Notes set forth opposite the names of
all such non-defaulting Dollar Notes Initial Purchasers, or in such other
proportions as may be specified by the Dollar Notes Initial Purchasers with the
consent of the non-defaulting Dollar Notes Initial Purchasers, to purchase the
Dollar Notes which such defaulting Dollar Notes Initial Purchaser or Dollar
Notes Initial Purchasers agreed but failed or refused to purchase on such date.
If any one or more of the Dollar Notes Initial Purchasers shall fail or refuse
to purchase Dollar Notes and the aggregate number of Dollar Notes with respect
to which such default occurs exceeds 10% of the aggregate number of Dollar Notes
to be purchased on the Closing Date, and arrangements satisfactory to the
Initial Purchasers and the Company for the purchase of such Dollar Notes are not
made within 48 hours after such default, this Agreement shall terminate without
liability of any party to any other party except that the provisions of
Section 4, Section 6, Section 8 and Section 9 shall at all times be effective
and shall survive such termination. In any such case either the Dollar Notes
Initial Purchasers or the Company shall have the right to postpone the Closing
Date, as the case may be, but in no event for longer than seven days in order
that the required changes, if any, to the Offering Memorandum or any other
documents or arrangements may be effected.
If any one or more of the several Euro Notes Initial Purchasers
shall fail or refuse to purchase Euro Notes that it or they have agreed to
purchase hereunder on the Closing Date, and the aggregate number of Euro Notes
which such defaulting Euro Notes Initial
22
Purchaser or Euro Notes Initial Purchasers agreed but failed or refused to
purchase does not exceed 10% of the aggregate number of the Euro Notes to be
purchased on such date, the other Initial Purchasers shall be obligated,
severally, in the proportions that the number of Euro Notes set forth opposite
their respective names on SCHEDULE A bears to the aggregate number of Euro Notes
set forth opposite the names of all such non-defaulting Euro Notes Initial
Purchasers, or in such other proportions as may be specified by the Euro Notes
Initial Purchasers with the consent of the non-defaulting Euro Notes Initial
Purchasers, to purchase the Euro Notes which such defaulting Euro Notes Initial
Purchaser or Euro Notes Initial Purchasers agreed but failed or refused to
purchase on such date. If any one or more of the Euro Notes Initial Purchasers
shall fail or refuse to purchase Euro Notes and the aggregate number of Euro
Notes with respect to which such default occurs exceeds 10% of the aggregate
number of Euro Notes to be purchased on the Closing Date, and arrangements
satisfactory to the Initial Purchasers and the Company for the purchase of such
Euro Notes are not made within 48 hours after such default, this Agreement shall
terminate without liability of any party to any other party except that the
provisions of Section 4, Section 6, Section 8 and Section 9 shall at all times
be effective and shall survive such termination. In any such case either the
Euro Notes Initial Purchasers or the Company shall have the right to postpone
the Closing Date, as the case may be, but in no event for longer than seven days
in order that the required changes, if any, to the Offering Memorandum or any
other documents or arrangements may be effected.
As used in this Agreement, the term "Initial Purchaser" shall be
deemed to include any person substituted for a defaulting Initial Purchaser
under this Section 10. Any action taken under this Section 16 shall not relieve
any defaulting Initial Purchaser from liability in respect of any default of
such Initial Purchaser under this Agreement.
Section 17. General Provisions. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. This Agreement may be executed in
two or more counterparts, each one of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement may not be amended or modified unless in writing by all of the
parties hereto, and no condition herein (express or implied) may be waived
unless waived in writing by each party whom the condition is meant to benefit.
The Table of Contents and the section headings herein are for the convenience of
the parties only and shall not affect the construction or interpretation of this
Agreement.
Section 18. Agreement Among Initial Purchasers. Each of the Euro Notes
Initial Purchasers agrees, by execution of this Agreement, that the IPMA
Agreement Among Managers Version I (New York Law Version) (the "IPMA Agreement")
shall be applicable to the relationship among such Euro Notes Initial Purchasers
in connection with this Agreement and, except as expressly specified in this
Agreement, the IPMA Recommendations shall not apply. In the event that the
terms of the IPMA Agreement are inconsistent with the terms of this Agreement,
the provisions of this Agreement shall apply. Bank of America International
Limited is the "Lead Manager" for purposes of the IPMA Agreement.
Each of the Dollar Notes Initial Purchasers agrees, by execution of this
Agreement, that the Master Agreement Among Underwriters, dated as of June 1994,
with NationsBanc Montgomery Securities LLC shall be applicable to the
relationship among such Dollar Notes Initial Purchasers in connection with this
Agreement.
23
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
Very truly yours,
DURA OPERATING CORP.
By: *
------------------------------------
DURA AUTOMOTIVE SYSTEMS, INC.
By: *
------------------------------------
DURA AUTOMOTIVE SYSTEMS, INC. COLUMN
SHIFTER OPERATIONS
By: *
------------------------------------
DURA AUTOMOTIVE SYSTEMS CABLE OPERATIONS,
INC.
By: *
------------------------------------
UNIVERSAL TOOL & STAMPING COMPANY INC.
By: *
------------------------------------
ADWEST ELECTRONICS, INC.
By: *
------------------------------------
24
ADWEST WESTERN AUTOMOTIVE, INC.
By: *
------------------------------------
X.E. CO.
By: *
------------------------------------
EXCEL OF TENNESSEE L.P.
By: Excel Industries of Michigan, Inc.
Its: General Partner
By: *
------------------------------------
EXCEL CORPORATION
By: *
------------------------------------
EXCEL INDUSTRIES OF MICHIGAN, INC.
By: *
------------------------------------
ANDERSON INDUSTRIES, INC.
By: *
------------------------------------
ATWOOD INDUSTRIES, INC.
By: *
------------------------------------
HYDRO FLAME CORPORATION
By: *
------------------------------------
25
ATWOOD AUTOMOTIVE INC.
By: *
------------------------------------
MARK I MOLDED PLASTICS, INC.
By: *
------------------------------------
MARK I MOLDED PLASTICS OF TENNESSEE, INC.
By: *
------------------------------------
* /s/ David Bovee
- --------------------------------------
DAVID R. BOVEE, solely in his
capacity as attorney-in-fact pursuant
to power of attorney
26
The foregoing Purchase Agreement is hereby confirmed and accepted
by the Initial Purchasers as of the date first above written.
NATIONSBANC MONTGOMERY SECURITIES LLC
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
By: NationsBanc Montgomery Securities LLC
By: /s/ D.J. Kelly
-----------------------------------
D.J. Kelly
Principal
BANK OF AMERICA INTERNATIONAL LIMITED
By: /s/ Stephen A. Flevy
-----------------------------------
DONALDSON, LUFKIN & JENRETTE INTERNATIONAL
By: /s/ M.J. Barnes
-----------------------------------
M.J. Barnes
27
SCHEDULE A
Aggregate Principal
Amount of Dollar
Notes to be
Dollar Notes Initial Purchasers Purchased
- -------------------------------
NationsBanc Montgomery Securities LLC . . . . . . . . . $180,000,000
DONALDSON, LUFKIN & JENRETTE Securities Corporation . . 120,000,000
Total Dollar Notes. . . . . . . . . . . . . . . . $300,000,000
Aggregate Principal
of Euro Notes to be
Euro Notes Initial Purchasers Purchased
- -----------------------------
Bank of America International Limited . . . . . . . . . E 60,0000
DONALDSON, LUFKIN & JENRETTE International . . . . . . . E 40,000,000
Total Euro Notes. . . . . . . . . . . . . . . . . E100,000,000
A-1
ANNEX I
Each Initial Purchaser understands that:
(a) Such Initial Purchaser agrees that it has not offered or
sold and will not offer or sell the Securities in the United States or
to, or for the benefit or account of, a U.S. Person (other than a
distributor), in each case, as defined in Rule 902 under the Securities
Act (i) as part of its distribution at any time and (ii) otherwise until
40 days after the later of the commencement of the offering of the
Securities pursuant hereto and the Closing Date, other than in
accordance with Regulation S of the Securities Act or another exemption
from the registration requirements of the Securities Act. Such Initial
Purchaser agrees that, during such 40-day restricted period, it will not
cause any advertisement with respect to the Securities (including any
"tombstone" advertisement) to be published in any newspaper or
periodical or posted in any public place and will not issue any circular
relating to the Securities, except such advertisements as are permitted
by and include the statements required by Regulation S.
(b) Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Securities by it to any distributor, dealer or
person receiving a selling concession, fee or other remuneration during
the 40-day restricted period referred to in Rule 903(c)(2) under the
Securities Act, it will send to such distributor, dealer or person
receiving a selling concession, fee or other remuneration a confirmation
or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933, as amended (the "Securities Act"),
and may not be offered and sold within the United States or to,
or for the account or benefit of, U.S. persons (i) as part of
your distribution at any time or (ii) otherwise until 40 days
after the later of the date the Notes were first offered to
persons other than "distributors" (as defined in Regulation S) in
reliance upon Regulation S and the Closing Date, except in either
case in accordance with Regulation S under the Securities Act (or
Rule 144A) and in connection with any subsequent sale by you of
the Notes covered hereby in reliance on Regulation S during the
period referred to above to any distributor, dealer or person
receiving a selling concession, fee or other remuneration, you
must deliver a notice to substantially the foregoing effect.
Terms used above have the meanings assigned to them in
Regulation S."