EXECUTION COPY
AGREEMENT AMONG INITIAL INVESTORS
THIS AGREEMENT AMONG INITIAL INVESTORS, dated as of July 23, 2007,
(this "Agreement") is made by and among (i) A-D Acquisition Holdings, LLC, a
limited liability company formed under the laws of the State of Delaware
("XXXX"), (ii) Harbinger Del-Auto Investment Company, Ltd., an exempted company
incorporated in the Cayman Islands ("Del-Auto"), (iii) UBS Securities LLC, a
limited liability company formed under the laws of the State of Delaware ("UBS")
and (iv) Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, a corporation
formed under the laws of Delaware ("Merrill"). Each of XXXX, Del-Auto, UBS and
Merrill are sometimes referred to herein individually as an "Initial Investor"
and collectively as the "Initial Investors."
1. General. Reference is made to the Additional Investor Agreement,
dated the date hereof, by and among the Initial Investors and the investors
listed on the signatures pages thereto (as amended, supplemented or otherwise
modified, the "AIA"). Capitalized terms used herein that are not defined herein
shall have the meanings assigned to them in the AIA. The Initial Investors are,
directly or indirectly, subject to certain joint and several liabilities in
connection with the AIA (the "Obligations").
2. Allocations. (a) To the extent the Initial Investors are required
to allocate (i) Purchased Shares to an Additional Investor and/or (ii) a portion
of any Standby Fee or Breakup Fee to an Additional Investor pursuant to the AIA,
each Initial Investor hereby agrees to allocate and cause the delivery or
payment, as applicable, to such Additional Investor its Pro Rata Portion of such
Purchased Shares and/or Standby Fee or Breakup Fee, as applicable. "Pro Rata
Portion" with respect to any Initial Investor means the percentage represented
by the maximum number of Purchased Shares to be sold by such Initial Investor
(the "Maximum Shares") as set forth next to such Initial Investor's name on
Exhibit A attached hereto of the total maximum number of Purchased Shares to be
sold by all Initial Investors pursuant to the AIA.
(b) Notwithstanding the provisions of Section 2(a) or any other
provision in this Agreement to the contrary, if Del-Auto, Merrill or UBS
validly exercises a Limited Termination under the EPCA as to itself (the
"Terminating Investor"): (i) the Terminating Investor shall have no obligations
or liabilities under Section 2(a) regarding Purchased Shares and/or any Standby
Fee or Breakup Fee to be allocated or delivered after the date of such Limited
Termination; (ii) any such Terminating Investor shall remain obligated and
liable under this Agreement with respect to Section 3 (as set forth therein) and
any Standby Fee or Breakup Fee earned by such Terminating Investor prior to the
date of such Limited Termination; (iii) the Pro Rata Portion applicable to each
Initial Investor (other than the Terminating Investor) after such Limited
Termination shall be adjusted to reflect any reallocation of the Maximum Shares
of the Terminating Investor to any other non-terminating Initial Investor in
accordance with the EPCA (including Section 2(b)) or as otherwise agreed among
the non-terminating Initial Investors, and the Pro Rata Portion applicable to
the Terminating Investor after such Limited Termination shall be reduced to 0%;
and (iv) the respective percentages of the Initial Investors set forth on
Schedule 2 of the EPCA shall be modified to reflect the modified number of
Investor Shares to be purchased by the non-terminating Initial Investors
subsequent to such Limited Termination.
3. Contribution. (a) If, at any time, any Initial Investor gives
notice (a "Contribution Notice") to the other Initial Investors of a Payment
(which notice shall include either (x) a written notice or invoice from an
Additional Investor requesting a Payment or (y) a certificate from the Initial
Investor who has made all or any portion of a Payment stating that it has made
such Payment), then each Initial Investor (i) shall be responsible for, and
shall pay, such Initial Investor's Pro Rata Portion of such Payment to the
Additional Investor, and (ii) shall, without duplication, reimburse the other
Initial Investors (as required based on the amount of such Payment made by each
such other Initial Investor), in each case, in an amount equal to such Initial
Investor's Pro Rata Portion of such Payment. For the avoidance of doubt, the
intent of this Section 3 is to apportion the cumulative, aggregate amounts
required to be paid by, and actually paid by, any Initial Investor and all of
the Initial Investors (directly or indirectly) as or in respect of Payments on a
several basis among all Initial Investors in accordance with their respective
Pro Rata Portions.
Without limiting the provisions of the preceding paragraph, the other
provisions of this Agreement or the rights and remedies of any Initial Investor
with respect thereto, if any Initial Investor fails to pay or reimburse all or
any portion of such Initial Investor's Pro Rata Portion of any Payment (any such
amount, a "Shortfall"), each non-defaulting Initial Investor, in addition to its
respective obligations set forth above, (A) shall be responsible for, and shall
pay to the Additional Investor or, as the case may be, such other person or
entity referred to in the first sentence of this Section 3(a), its proportional
share of the Shortfall based on its Pro Rata Portion, but excluding the Pro Rata
Portion of the defaulting Initial Investor (the "Adjusted Pro Rata Portion"),
and (B) shall, without duplication, reimburse any non-defaulting Initial
Investor (as required based on the amount of the respective payments made by
such non-defaulting Initial Investors with respect to such Shortfall), in each
case, in an amount equal to the non-defaulting Initial Investor's Adjusted Pro
Rata Portion of such Shortfall; provided, that nothing contained in this
sentence shall relieve or release a defaulting Initial Investor from any of its
obligations and liabilities under this Agreement, including, without limitation,
the obligation to reimburse the non-defaulting Initial Investors for any payment
or reimbursement made by the non-defaulting Initial Investors with respect to
any Shortfall.
(b) For purposes of this Agreement: (x) "Payment" or "Payments" means
any amount required to be paid or paid, or shares required to be delivered or
delivered, directly or indirectly to an Additional Investor by any Initial
Investor in respect of the Obligations (including any liabilities, penalties,
losses, damages, deficiencies and judgments required to be paid in respect
thereto including out-of-pocket costs in defending any claim by an Additional
Investor) or any Shortfall.
(c) Notwithstanding the foregoing provisions of this Section 3 or any
other provision in this Agreement to the contrary, a Terminating Investor shall
have no obligations or liabilities under this Agreement with respect to Payments
pursuant to Section 3 of this Agreement to the extent arising out of any facts
or circumstances occurring entirely after the date of such Limited Termination
by the Terminating Investor; provided, that any such Terminating Investor shall
remain obligated and liable under this Agreement with respect to Payments to the
extent arising out of any facts or circumstances occurring on or prior to the
date of such termination by the Terminating Investor.
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4. Obligations Unconditional; No Prohibition on Rights and Remedies
for Breach of AIA. Nothing contained in this Agreement shall preclude or
prohibit any Initial Investor from taking any actions and otherwise exercising
any rights or remedies, at law or in equity, against any other Initial Investor
with respect to such other Initial Investor's breach of the AIA or any other
documents or agreements entered into in connection therewith. Each of the
Initial Investors acknowledges, and agrees to, the immediately preceding
sentence.
5. Reinstatement. The payment and reimbursement obligations of each
Initial Investor under this Agreement shall be automatically reinstated if and
to the extent that for any reason any payment by or on behalf of such Initial
Investor in respect of any obligation hereunder is rescinded or must be
otherwise restored by the person or entity receiving such payment, whether as a
result of any proceedings in bankruptcy or reorganization or otherwise.
6. Representations and Warranties. Each Initial Investor, severally
but not jointly, represents and warrants to the other Initial Investors as to
itself as follows:
(a) Such Initial Investor has full power, authority and legal right to
execute, deliver, perform and observe the provisions of this Agreement,
including, without limitation, the payment of all moneys and delivery of shares
hereunder.
(b) The execution, delivery and performance by such Initial Investor
of this Agreement has been duly authorized by all necessary action under its
constituent documents.
(c) This Agreement constitutes the legal, valid and binding obligation
of such Initial Investor, enforceable in accordance with its terms, subject as
to enforceability to bankruptcy, insolvency and other similar laws affecting
creditors' rights generally and general equity principles.
(d) No authorization, approval, consent or permission (governmental or
otherwise) of any court, agency, commission or other authority or entity is
required for the due execution, delivery, performance or observance by such
Initial Investor of this Agreement or for the payment of any sums or delivery of
shares hereunder.
(e) Neither the execution and delivery of this Agreement by such
Initial Investor, nor the consummation of the transactions herein contemplated,
nor compliance with the terms and provisions hereof, conflicts or will conflict
with or result in a breach of any of the terms, conditions or provisions of the
constituent documents of such Initial Investor, or of any law, order, writ,
injunction or decree of any court or governmental authority, or of any agreement
or instrument to which such Initial Investor is a party or by which it is bound,
or constitutes or will constitute a default thereunder.
(f) Such Initial Investor and its advisors and representatives have
not, in connection with the sale of the Purchased Shares provided to any
Additional Investors or their advisors or representatives any written
information regarding the Company or its subsidiaries prepared by such Initial
Investor for the purpose of offering or selling the Purchased Shares other than
information that is generally available to the public.
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7. Notices. All notices, consents, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) in accordance with
Section 13 of the EPCA (it being understood that notice given or made to an
Affiliate of an Initial Investor if such Affiliate is a party to the EPCA shall
be deemed to be a notice given or made to such Initial Investor).
8. Taxes. To the fullest extent permitted by law, all payments to be
made among the Initial Investors pursuant to this Agreement shall be made
without any withholding on account of taxes, levies, duties or any other
deduction whatsoever. If an Initial Investor is required by law to withhold or
deduct any sum from payments to another Initial Investor required under this
Agreement, such Initial Investor making payment shall, to the extent permitted
by applicable law, increase the amount paid by it so that, after all
withholdings and deductions, the amount received by the applicable receiving
Initial Investor shall equal the amount such receiving Initial Investor would
have received without any such deduction.
9. Governing Law; Consent to Jurisdiction. This letter agreement shall
be governed by, and construed in accordance with, the laws of the State of New
York (without giving effect to the conflict of laws principles thereof). In
addition, each party (i) irrevocably and unconditionally consents and submits to
the personal jurisdiction of the state and federal courts located in the State
of New York, New York County solely for the purposes of any suit, action or
other proceeding between any of the parties hereto arising out of this
Agreement, (ii) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from such court, (iii) waives
any claim of improper venue or any claim that the state or federal courts
located in the State of New York, New York County are an inconvenient forum for
any action, suit or proceeding between any of the parties hereto arising out of
this Agreement or any transaction contemplated hereby, (iv) agrees that it will
not bring any action relating to this Agreement in any court other than the
state or federal courts of the State of New York, New York County and (v) to the
fullest extent permitted by law, consents to service being made through the
notice procedures set forth in Section 7.
10. WAIVER OF JURY TRIAL. EACH PARTY HERETO ACKNOWLEDGES AND AGREES
THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11. Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12. No Waiver; Cumulative Remedies. No party hereto shall by any act
(except by a written instrument pursuant to Section 13) of delay, indulgence,
omission or
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otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any breach of any of the terms and conditions hereof. No failure
to exercise, nor any delay in exercising, on the part of any party hereto, any
right, power or privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy that would otherwise be
available on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
rights or remedies provided by law.
13. Amendments and Waivers. None of the terms or provisions of this
Agreement may be waived, amended or supplemented or otherwise modified except by
a written instrument executed by each party hereto.
14. Assignment; Successors and Assigns; No Third-Party Rights. No
party may assign its rights nor delegate its obligations under this Agreement,
in whole or in part, without the prior written consent of each other party
hereto. Any purported assignment or delegation made without the prior written
consent of each other party hereto shall be null and void. This Agreement shall
bind the successors and permitted assigns of the parties hereto and shall inure
to the benefit of each party and such successors and permitted assigns. Nothing
expressed or referred to in this Agreement will be construed to give any person
other than the parties to this Agreement any legal or equitable right, remedy or
claim under or with respect to this Agreement or any provision of this
Agreement. This Agreement and all of its provisions and conditions are for the
sole and exclusive benefit of the parties to this Agreement and their successors
and permitted assigns and no other person or entity.
15. Counterparts. This Agreement may be executed in any number of
separate counterparts, including by facsimile, each of which shall be deemed an
original, but all of which shall constitute one and the same instrument.
16. No Recourse. Notwithstanding anything to the contrary herein, each
Initial Investor acknowledges and agrees that (i) no person or entity other than
an Initial Investor shall have any obligation under this Agreement, (ii) no
recourse under this Agreement shall be had against any past, current or future
officer, director, agent, employee, affiliate or advisor of any Initial
Investor, or any past, current or future director, officer, agent, employee,
advisor, general or limited partner, member, stockholder, affiliate, assignee or
successor of any of the foregoing (collectively, the "Relevant Persons"), as
such, whether by the enforcement of any judgment or assessment or by any legal
or equitable proceeding or by virtue of any law or otherwise and (iii) no
personal liability whatsoever shall attach to, be imposed on, or otherwise be
incurred by any Relevant Person, as such, for any obligation of the applicable
Initial Investor under this Agreement or for any claim relating to, based on, or
in respect of or by reason of such obligation.
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IN WITNESS WHEREOF, the undersigned have duly executed and delivered
this Agreement on the date first above written.
A-D ACQUISITION HOLDINGS, LLC
By: /s/ Xxxxx X. Xxxxx
------------------------------
Name:
Title:
HARBINGER DEL-AUTO INVESTMENT
COMPANY, LTD.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
UBS SECURITIES LLC
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Joint Global Head
Leveraged Finance
Americas Head Financial
Sponsors
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Managing Director
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Director
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