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EXHIBIT 1
NEWCOR, INC.
GRAND MACHINING COMPANY
DECO TECHNOLOGIES, INC.
DECO INTERNATIONAL, INC.
TURN-MATIC, INC.
ROCHESTER GEAR, INC.
PLASTRONICS PLUS, INC.
$125,000,000
9-7/8% Senior Subordinated Notes due 2008
Purchase Agreement
February 27, 1998
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇▇▇▇▇▇ & COMPANY SECURITIES, INC.
ING BARING (U.S.) SECURITIES, INC.
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$125,000,000
9-7/8% Senior Subordinated Notes due 2008
of NEWCOR, INC.
PURCHASE AGREEMENT
February 27, 1998
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇▇▇▇▇▇ & COMPANY SECURITIES, INC.
ING BARING (U.S.) SECURITIES, INC.
c/▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Newcor, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
("DLJ"), ▇▇▇▇▇▇▇▇ & Company Securities, Inc., and ING Baring (U.S.) Securities,
Inc. (each, an "Initial Purchaser" and, collectively, the "Initial Purchasers")
an aggregate of $125,000,000 in principal amount of its 9-7/8% Senior
Subordinated Notes due 2008 (the "Series A Notes"), subject to the terms and
conditions set forth herein. The Series A Notes are to be issued pursuant to the
provisions of an indenture (the "Indenture"), to be dated as of the Closing Date
(as defined below), among the Company, the Guarantors (as defined below) and
First Trust National Association, as trustee (the "Trustee"). The Series A Notes
and the Series B Notes (as defined below) issuable in exchange therefor are
collectively referred to herein as the "Notes." The Notes will be guaranteed
(the "Subsidiary Guarantees") by each of the entities listed on Schedule A,
hereto (each, a "Guarantor" and collectively the "Guarantors"). Capitalized
terms used but not defined herein shall have the meanings given to such terms in
the Offering Memorandum (as defined below).
1. OFFERING MEMORANDUM. The Series A Notes will be offered and
sold to the Initial Purchasers pursuant to one or more exemptions from the
registration requirements under the Securities Act of 1933, as amended (the
"Act"). The Company and the Guarantors have prepared a preliminary offering
memorandum, dated February 10, 1998 (the "Preliminary Offering Memorandum") and
a final offering memorandum, dated February 27, 1998 (the "Offering
Memorandum"), relating to the Series A Notes and the Subsidiary Guarantees.
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Upon original issuance thereof, and until such time as the
same is no longer required pursuant to the Indenture, the Series A Notes (and
all securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS
SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A
BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE ACT) (A "QIB"), (B) IT HAS
ACQUIRED THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION
D UNDER THE ACT (AN "IAI"),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF THE ACT, (D) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE ACT, (E) TO AN IAI THAT,
PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE) AND AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE ACT, (F) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT (AND BASED UPON
AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION"
AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
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REGULATION S UNDER THE ACT. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE
IN VIOLATION OF THE FOREGOING."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained herein, the Company agrees to
issue and sell to the Initial Purchasers, and the Initial Purchasers agree,
severally and not jointly, to purchase from the Company, an aggregate principal
amount of $125,000,000 of Series A Notes as set forth in Schedule C hereto at a
purchase price equal to 97% of the principal amount thereof (the "Purchase
Price").
3. TERMS OF OFFERING. The Initial Purchasers have advised the
Company that the Initial Purchasers will make offers (the "Exempt Resales") of
the Series A Notes purchased hereunder on the terms set forth in the Offering
Memorandum, as amended or supplemented, solely to (i) persons whom the Initial
Purchasers reasonably believe to be "qualified institutional buyers" as defined
in Rule 144A under the Act ("QIBs"), and (ii) to persons permitted to purchase
the Series A Notes in offshore transactions in reliance upon Regulation S under
the Act (each, a "Regulation S Purchaser") (such persons specified in clauses
(i) and (ii) being referred to herein as the "Eligible Purchasers"). The Initial
Purchasers will offer the Series A Notes to Eligible Purchasers initially at a
price equal to 100% of the principal amount thereof. Such price may be changed
at any time without notice.
Holders (including subsequent transferees) of the Series A
Notes will have the registration rights set forth in the registration rights
agreement (the "Registration Rights Agreement"), to be dated the Closing Date,
in substantially the form of Exhibit A hereto, for so long as such Series A
Notes constitute "Transfer Restricted Securities" (as defined in the
Registration Rights Agreement). Pursuant to the Registration Rights Agreement,
the Company and the Guarantors will agree to file with the Securities and
Exchange Commission (the "Commission") under the circumstances set forth
therein, (i) a registration statement under the Act (the "Exchange Offer
Registration Statement") relating to the Company's 9.875% Series B Subordinated
Notes due 2008 (the "Series B Notes"), to be offered in exchange for the Series
A Notes (such offer to exchange being referred to as the "Exchange Offer") and
the Subsidiary Guarantees thereof and (ii) a shelf registration statement
pursuant to Rule 415 under the Act (the "Shelf Registration Statement" and,
together with the Exchange Offer Registration Statement, the "Registration
Statements") relating to the resale by certain holders of the Series A Senior
Notes and to use its best efforts to cause such Registration Statements to be
declared and remain effective and usable for the periods specified in the
Registration Rights Agreement and to consummate the Exchange Offer. This
Agreement, the Indenture, the Notes, the Subsidiary Guarantees and the
Registration Rights Agreement are hereinafter sometimes referred to collectively
as the "Operative Documents."
A portion all of the net proceeds of the Offering will be used
to finance a portion of the cash consideration for the Company's acquisitions of
Grand Machining Company, Deco Technologies, Inc. and Deco International, Inc.
(collectively the "Deco Entities") (the "Deco Acquisition") and Turn-Matic, Inc.
("Turn-Matic") (the "Turn-Matic Acquisition" and, together with the Deco
Acquisition, the "Acquisitions") and to repay indebtedness incurred in
connection
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with the Company's acquisition of substantially all of the assets of Machine
Tool & Gear, Inc. ("MT&G") The MT&G asset purchase and the Acquisitions have
been or will be made pursuant to an Asset Purchase Agreement between the Company
and MT&G, a Stock Purchase Agreement among the Company and ▇▇▇▇▇▇▇ Grand,
Individually and as Trustee of the ▇▇▇▇▇▇▇ Grand Revocable Trust Dated July 5,
1979 and the ▇▇▇▇▇▇▇ ▇. Grand Property Trust dated January 22, 1992, and a Stock
Purchase Agreement among the Company and each of the shareholders of Turn-Matic
(collectively the "Acquisition Agreements").
Immediately upon consummation of the Acquisitions, the Deco
Entities and Turn-Matic shall execute and deliver a counterpart of this
Agreement, the Registration Rights Agreement, the Indenture and their respective
Subsidiary Guarantees.
4. DELIVERY AND PAYMENT.
(a) Delivery of, and payment of the Purchase Price for, the
Series A Notes shall be made at the offices of Miller, Canfield, Paddock and
Stone, P.L.C., ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇") or such other location as may be mutually
acceptable. Such delivery and payment shall be made at 9:00 a.m. local time, on
March 4, 1998 or at such other time as shall be agreed upon by the Initial
Purchasers and the Company in writing. The time and date of such delivery and
the payment for the Series A Notes are herein called the "Closing Date."
(b) One or more of the Series A Notes in definitive global
form, registered in the name of Cede & Co., as nominee of The Depository Trust
Company ("DTC"), having an aggregate principal amount corresponding to the
aggregate principal amount of the Series A Notes (collectively, the "Global
Note"), shall be delivered by the Company to the Initial Purchasers (or as the
Initial Purchasers direct) in each case with any transfer taxes thereon duly
paid by the Company against payment by the Initial Purchasers of the Purchase
Price thereof by wire transfer in same day funds to the order of the Company.
The Global Note shall be made available to the Initial Purchasers for inspection
not later than 9:30 a.m., New York City time, on the business day immediately
preceding the Closing Date.
5. AGREEMENTS OF THE COMPANY AND THE GUARANTORS. Each of the
Company and the Guarantors hereby agrees with the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if
requested by the Initial Purchasers, confirm such advice in writing, (i) of the
issuance by any state securities commission of any stop order suspending the
qualification or exemption from qualification of any Series A Notes for offering
or sale in any jurisdiction designated by the Initial Purchasers pursuant to
Section 5(e) hereof, or the initiation of any proceeding by any state securities
commission or any other federal or state regulatory authority for such purpose
and (ii) of the happening of any event during the period referred to in Section
5(c) below that makes any statement of a material fact made in the Preliminary
Offering Memorandum or the Offering Memorandum untrue or that requires any
additions to or changes in the Preliminary Offering
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Memorandum or the Offering Memorandum in order to make the statements therein
not misleading. The Company and the Guarantors shall use their best efforts to
prevent the issuance of any stop order or order suspending the qualification or
exemption of any Series A Notes under any state securities or Blue Sky laws and,
if at any time any state securities commission or other federal or state
regulatory authority shall issue an order suspending the qualification or
exemption of any Series A Notes under any state securities or Blue Sky laws, the
Company and the Guarantors shall use their best efforts to obtain the withdrawal
or lifting of such order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons
identified by the Initial Purchasers to the Company as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and any amendments
or supplements thereto, as the Initial Purchasers may reasonably request for the
time period specified in Section 5(c). Subject to the Initial Purchasers'
compliance with their representations and warranties and agreements set forth in
Section 7 hereof, the Company consents to the use of the Preliminary Offering
Memorandum and the Offering Memorandum, and any amendments and supplements
thereto required pursuant hereto, by the Initial Purchasers in connection with
Exempt Resales.
(c) During such period as in the opinion of counsel for the
Initial Purchasers an Offering Memorandum is required by law to be delivered in
connection with Exempt Resales by the Initial Purchasers or during the 360 days
following the Closing Date, whichever is shorter, (i) not to make any amendment
or supplement to the Offering Memorandum of which the Initial Purchasers shall
not previously have been advised or to which the Initial Purchasers shall
reasonably object after being so advised and (ii) to prepare promptly upon the
Initial Purchasers' reasonable request, any amendment or supplement to the
Offering Memorandum which may be necessary or advisable in connection with such
Exempt Resales.
(d) If, during the period referred to in Section 5(c)
above, any event shall occur or condition shall exist as a result of which, in
the opinion of counsel to the Initial Purchasers, it becomes necessary to amend
or supplement the Offering Memorandum in order to make the statements therein,
in the light of the circumstances when such Offering Memorandum is delivered to
an Eligible Purchaser, not misleading, or if, in the opinion of counsel to the
Initial Purchasers, it is necessary to amend or supplement the Offering
Memorandum to comply with any applicable law, forthwith to prepare an
appropriate amendment or supplement to such Offering Memorandum so that the
statements therein, as so amended or supplemented, will not, in the light of the
circumstances when it is so delivered, be misleading, or so that such Offering
Memorandum will comply with applicable law, and to furnish to the Initial
Purchasers and such other persons as the Initial Purchasers may designate such
number of copies thereof as the Initial Purchasers may reasonably request.
(e) During the period specified in Section 5(c) hereof, to
cooperate with the Initial Purchasers and counsel to the Initial Purchasers in
connection with the registration or qualification of the Series A Notes for
offer and sale to the Initial Purchasers and pursuant to Exempt Resales under
the securities or Blue Sky laws of such jurisdictions as the Initial Purchasers
may request and to continue such registration or qualification in effect
throughout such period and to file such consents to service of process or other
documents as may
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be necessary in order to effect such registration or qualification; provided,
however, that neither the Company nor any Guarantor shall be required in
connection therewith to qualify as a foreign corporation in any jurisdiction in
which it is not now so qualified or to take any action that would subject it to
general consent to service of process or taxation other than as to matters and
transactions relating to the Preliminary Offering Memorandum, the Offering
Memorandum or Exempt Resales, in any jurisdiction in which it is not now so
subject.
(f) So long as the Notes are outstanding, (i) to mail and
make generally available as soon as practicable after the end of each fiscal
year to the record holders of the Notes a financial report of the Company and
its subsidiaries on a consolidated basis (and a similar financial report of all
unconsolidated subsidiaries, if any), all such financial reports to include a
consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
shareholders' equity as of the end of and for such fiscal year, together with
comparable information as of the end of and for the preceding year, certified by
the Company's independent public accountants and (ii) to mail and make generally
available as soon as practicable after the end of each quarterly period (except
for the last quarterly period of each fiscal year) to such holders, a
consolidated balance sheet, a consolidated statement of operations and a
consolidated statement of cash flows (and similar financial reports of all
unconsolidated subsidiaries, if any) as of the end of and for such period, and
for the period from the beginning of such year to the close of such quarterly
period, together with comparable information for the corresponding periods of
the preceding year.
(g) So long as the Notes are outstanding, to furnish to the
Initial Purchasers as soon as available copies of all reports or other
communications furnished by the Company or any of the Guarantors to its security
holders or furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company or any of the
Guarantors is listed and such other publicly available information concerning
the Company and/or its subsidiaries as the Initial Purchasers may reasonably
request.
(h) So long as any of the Series A Notes remain outstanding
and during any period in which the Company and the Guarantors are not subject to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), to make available to any holder of Series A Notes in connection
with any sale thereof and any prospective purchaser of such Series A Notes from
such holder, the information ("Rule 144A Information") required by Rule
144A(d)(4) under the Act.
(i) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of the obligations of the Company
and the Guarantors under this Agreement, including: (i) the fees, disbursements
and expenses of counsel to the Company and the Guarantors and accountants of the
Company and the Guarantors in connection with the sale and delivery of the
Series A Notes to the Initial Purchasers and pursuant to Exempt Resales, and all
other fees and expenses in connection with the preparation, printing, filing and
distribution of the Preliminary Offering Memorandum, the Offering Memorandum and
all amendments and supplements to any of the foregoing (including financial
statements), including the mailing and delivering of copies thereof to the
Initial Purchasers and persons designated by it in the quantities
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specified herein, (ii) all costs and expenses related to the transfer and
delivery of the Series A Notes to the Initial Purchasers and pursuant to Exempt
Resales, including any transfer or other taxes payable thereon, (iii) all costs
of printing or producing this Agreement, the other Operative Documents and any
other agreements or documents in connection with the offering, purchase, sale or
delivery of the Series A Notes, (iv) all expenses in connection with the
registration or qualification of the Series A Notes and the Subsidiary
Guarantees for offer and sale under the securities or Blue Sky laws of the
several states and all costs of printing or producing any preliminary and
supplemental Blue Sky memoranda in connection therewith (including the filing
fees and fees and disbursements of counsel for the Initial Purchasers in
connection with such registration or qualification and memoranda relating
thereto), (v) the cost of printing certificates representing the Series A Notes
and the Subsidiary Guarantees, (vi) all expenses and listing fees in connection
with the application for quotation of the Series A Notes in the National
Association of Securities Dealers, Inc. ("NASD") Automated Quotations System -
Portal ("PORTAL") market, (vii) the fees and expenses of the Trustee and the
Trustee's counsel in connection with the Indenture, the Notes and the Subsidiary
Guarantees, (viii) the costs and charges of any transfer agent, registrar and/or
depositary (including DTC), (ix) any fees charged by rating agencies for the
rating of the Notes, (x) all costs and expenses of the Exchange Offer and any
Registration Statement, as set forth in or contemplated by the Registration
Rights Agreement, and (xi) and all other costs and expenses incident to the
performance of the obligations of the Company and the Guarantors hereunder for
which provision is not otherwise made in this Section.
(j) To use its best efforts to effect the inclusion of the
Series A Notes in PORTAL and to maintain the listing of the Series A Notes on
PORTAL for so long as the Series A Notes are outstanding.
(k) To obtain the approval of DTC for "book-entry" transfer
of the Notes, and to comply with all of its agreements set forth in the
representation letters of the Company and the Guarantors to DTC relating to the
approval of the Notes by DTC for "book-entry" transfer.
(l) During the period beginning on the date hereof and
continuing to and including the date that is 180 days after the Closing Date,
not to offer, sell, contract to sell or otherwise transfer or dispose of any
debt securities of the Company or any Guarantor or any warrants, rights or
options to purchase or otherwise acquire debt securities of the Company or any
Guarantor substantially similar to the Notes and the Subsidiary Guarantees
(other than (i) the Notes and the Subsidiary Guarantees and (ii) commercial
paper issued in the ordinary course of business), without the prior written
consent of ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation.
(m) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act) that
would be integrated with the sale of the Series A Notes to the Initial
Purchasers or pursuant to Exempt Resales in a manner that would require the
registration of any such sale of the Series A Notes under the Act.
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(n) Not to voluntarily claim, and to actively resist any
attempts to claim, the benefit of any usury laws against the holders of any
Notes and the related Subsidiary Guarantees.
(o) To cause the Exchange Offer to be made in the
appropriate form to permit Series B Notes and guarantees thereof by the
Guarantors registered pursuant to the Act to be offered in exchange for the
Series A Notes and the Subsidiary Guarantees and to comply with all applicable
federal and state securities laws in connection with the Exchange Offer.
(p) To comply with all of its agreements set forth in the
Registration Rights Agreement.
(q) Immediately upon consummation of the Acquisitions, to
cause the Deco Entities and Turn-Matic to execute and deliver a counterpart of
this Agreement, the Registration Rights Agreement, the Indenture and their
respective Subsidiary Guarantees, so that the Deco Entities and Turn-Matic
become Guarantors for all purposes hereof and thereof.
(r) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by it prior
to the Closing Date and to satisfy all conditions precedent to the delivery of
the Series A Notes and the Subsidiary Guarantees.
6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY
AND THE GUARANTORS. As of the date hereof, each of the Company and the
Guarantors, jointly and severally, represents and warrants to, and agrees with,
the Initial Purchasers that:
(a) The Preliminary Offering Memorandum and the Offering
Memorandum do not, and any supplement or amendment to them will not, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except that the
representations and warranties contained in this paragraph (a) shall not apply
to statements in or omissions from the Preliminary Offering Memorandum or the
Offering Memorandum (or any supplement or amendment thereto) based upon
information relating to the Initial Purchasers furnished to the Company in
writing by the Initial Purchasers expressly for use therein. No stop order
preventing the use of the Preliminary Offering Memorandum or the Offering
Memorandum, or any amendment or supplement thereto, or any order asserting that
any of the transactions contemplated by this Agreement are subject to the
registration requirements of the Act, has been issued.
(b) Each of the Company, its subsidiaries, the Deco
Entities and Turn-Matic has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its jurisdiction of incorporation
and has the corporate power and authority to carry on its business as described
in the Preliminary Offering Memorandum and the Offering Memorandum and to own,
lease and operate its properties, and each is duly qualified and is in good
standing as a foreign corporation authorized to do business in each jurisdiction
in which the nature of its business or its ownership or leasing of property
requires such qualification, except where the
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failure to be so qualified would not have a material adverse effect on the
business, prospects, financial condition or results of operations of the Company
and its subsidiaries (including for purposes of this subsection, the Deco
Entities and Turn-Matic), taken as a whole, or draw into question the validity
of this Agreement or the other Operative Documents (a "Material Adverse
Effect").
(c) All outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid, non-assessable
and not subject to any preemptive or similar rights.
(d) The entities listed on Schedule B hereto are the only
subsidiaries, direct or indirect, of the Company. All of the outstanding shares
of capital stock of each of the Company's subsidiaries, the Deco Entities and
Turn-Matic have been duly authorized and validly issued and are fully paid and
non-assessable, and are (in the case of the Company's subsidiaries) or upon
consummation of the Acquisitions will be (in the case of the Deco Entities and
Turn-Matic) owned by the Company, directly or indirectly through one or more
subsidiaries, free and clear of any security interest, claim, lien, encumbrance
or adverse interest of any nature (each, a "Lien").
(e) This Agreement has been duly authorized, executed and
delivered by the Company and each of the Guarantors, except the Deco Entities
and Turn-Matic. Upon consummation of the Acquisitions, this Agreement will be
duly authorized, executed and delivered by each of the Deco Entities and
Turn-Matic.
(f) The Indenture has been duly authorized by the Company
and each of the Guarantors, except the Deco Entities and Turn-Matic, and, on the
Closing Date, will have been validly executed and delivered by the Company and
each of the Guarantors, except the Deco Entities and Turn-Matic. Upon
consummation of the Acquisitions, the Indenture will be duly authorized,
executed and delivered by the Deco Entities and Turn-Matic. When the Indenture
has been duly executed and delivered by the Company and each of the Guarantors,
the Indenture will be a valid and binding agreement of the Company and each
Guarantor, enforceable against the Company and each Guarantor in accordance with
its terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability. On the Closing Date, the
Indenture will conform in all material respects to the requirements of the Trust
Indenture Act of 1939, as amended (the "TIA" or "Trust Indenture Act"), and the
rules and regulations of the Commission applicable to an indenture which is
qualified thereunder.
(g) The Series A Notes have been duly authorized and, on
the Closing Date, will have been validly executed and delivered by the Company.
When the Series A Notes have been issued, executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by
the Initial Purchasers in accordance with the terms of this Agreement, the
Series A Notes will be entitled to the benefits of the Indenture and will be
valid and binding obligations of the Company, enforceable in accordance with
their terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting
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creditors' rights generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability. On the Closing Date, the Series A Notes will conform as to legal
matters to the description thereof contained in the Offering Memorandum.
(h) On the Closing Date, the Series B Notes will have been
duly authorized by the Company. When the Series B Notes are issued, executed and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Series B Notes will be entitled to the benefits of the Indenture
and will be the valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(i) The Subsidiary Guarantee to be endorsed on the Series A
Notes by each Guarantor has been duly authorized by each such Guarantor, except
the Deco Entities and Turn-Matic, and, on the Closing Date, will have been duly
executed and delivered by each such Guarantor, except the Deco Entities and
Turn-Matic. Upon consummation of the Acquisitions, the Subsidiary Guarantee will
be duly authorized, executed and delivered by each of the Deco Entities and
Turn-Matic. When the Series A Notes have been issued, executed and authenticated
in accordance with the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, the Subsidiary
Guarantee of each Guarantor, including the Deco Entities and Turn-Matic,
endorsed thereon will be entitled to the benefits of the Indenture and will be
the valid and binding obligation of such Guarantor, enforceable against such
Guarantor in accordance with its terms, except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability. On the Closing Date, the Subsidiary Guarantees to be endorsed on
the Series A Notes will conform as to legal matters to the description thereof
contained in the Offering Memorandum.
(j) The Subsidiary Guarantee to be endorsed on the Series B
Notes by each Guarantor has been duly authorized by each such Guarantor, except
the Deco Entities and Turn-Matic. Upon consummation of the Acquisitions, the
Deco Entities and Turn-Matic will duly authorize such Subsidiary Guarantee. When
issued, the Series B Notes will have been duly executed and delivered by each
such Guarantor. When the Series B Notes have been issued, executed and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Subsidiary Guarantee of each Guarantor endorsed thereon will be
entitled to the benefits of the Indenture and will be the valid and binding
obligation of such Guarantor, enforceable against such Guarantor in accordance
with its terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(ii) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability. When the Series B
Notes are issued, authenticated and delivered, the Subsidiary Guarantees to be
endorsed on the Series B Notes will conform as to legal matters to the
description thereof in the Offering Memorandum.
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(k) The Registration Rights Agreement has been duly
authorized by the Company and each of the Guarantors, except the Deco Entities
and Turn-Matic, and, on the Closing Date, will have been duly executed and
delivered by the Company and each of the Guarantors, except the Deco Entities
and Turn-Matic. Upon consummation of the Acquisitions, the Registration Rights
Agreement will be duly authorized, executed and delivered by the Deco Entities
and Turn-Matic. When the Registration Rights Agreement has been duly executed
and delivered, the Registration Rights Agreement will be a valid and binding
agreement of the Company and each of the Guarantors, enforceable against the
Company and each Guarantor in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally, (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability, (iii) rights to indemnity and contribution thereunder may
be limited by federal or state securities laws or principles of public policy.
On the Closing Date, the Registration Rights Agreement will conform as to legal
matters to the description thereof in the Offering Memorandum.
(l) Neither the Company nor any of its subsidiaries, nor
any of the Deco Entities or Turn-Matic is in violation of its respective charter
or by-laws or in default in the performance of any obligation, agreement,
covenant or condition contained in any indenture, loan agreement, mortgage,
lease or other agreement or instrument that is material to the Company and its
subsidiaries (including, for purposes of this subsection, the Deco Entities and
Turn-Matic), taken as a whole, to which the Company or any of its subsidiaries,
any Deco Entity or Turn-Matic is a party or by which the Company or any of its
subsidiaries or their respective property is bound.
(m) The execution, delivery and performance of this
Agreement and the other Operative Documents by the Company and each of the
Guarantors, compliance by the Company and each of the Guarantors with all
provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the securities
or Blue Sky laws of the various states), (ii) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the charter or
by-laws of the Company, any of its subsidiaries, any Deco Entity or Turn-Matic
or any indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and its subsidiaries (including, for
purposes of this subsection, the Deco Entities and Turn-Matic), taken as a
whole, to which the Company, any of its subsidiaries, any Deco Entity or
Turn-Matic is a party or by which the Company, any of its subsidiaries, any Deco
Entity or Turn-Matic or their respective property is bound, (iii) violate or
conflict with any applicable law or any rule, regulation, judgment, order or
decree of any court or any governmental body or agency having jurisdiction over
the Company, any of its subsidiaries, any Deco Entity or Turn-Matic or their
respective property, (iv) result in
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the imposition or creation of (or the obligation to create or impose) a Lien
under, any agreement or instrument to which the Company, any of its
subsidiaries, any Deco Entity or Turn-Matic is a party or by which the Company,
any of its subsidiaries, any Deco Entity or Turn-Matic or their respective
property is bound, or (v) result in the termination, suspension or revocation of
any Authorization (as defined below) of the Company, any of its subsidiaries,
any Deco Entities or Turn-Matic or result in any other impairment of the rights
of the holder of any such Authorization.
(n) Except as may be described in the Offering Memorandum,
there are no legal or governmental proceedings pending or threatened to which
the Company or any of its subsidiaries, any Deco Entity or Turn-Matic is or
could be a party or to which any of their respective property is or could be
subject, which might result, singly or in the aggregate, in a Material Adverse
Effect.
(o) Neither the Company nor any of its subsidiaries, any
Deco Entity or Turn-Matic has violated any foreign, federal, state or local law
or regulation relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), any provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or any provisions of the
Foreign Corrupt Practices Act or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the aggregate, would
not have a Material Adverse Effect.
(p) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any Authorization, any related constraints on operating
activities and any potential liabilities to third parties) which would, singly
or in the aggregate, have a Material Adverse Effect.
(q) Each of the Company, its subsidiaries, the Deco Entities
and Turn-Matic has such permits, licenses, consents, exemptions, franchises,
authorizations and other approvals (each, an "Authorization") of, and has made
all filings with and notices to, all governmental or regulatory authorities and
self-regulatory organizations and all courts and other tribunals, including
without limitation, under any applicable Environmental Laws, as are necessary to
own, lease, license and operate its respective properties and to conduct its
business, except where the failure to have any such Authorization or to make any
such filing or notice would not, singly or in the aggregate, have a Material
Adverse Effect. Each such Authorization is valid and in full force and effect
and each of the Company, its subsidiaries, the Deco Entities and Turn-Matic is
in compliance with all the terms and conditions thereof and with the rules and
regulations of the authorities and governing bodies having jurisdiction with
respect thereto; and no event has occurred (including, without limitation, the
receipt of any notice from any authority or governing body) which allows or,
after notice or lapse of time or both, would allow, revocation, suspension or
termination of any such Authorization or results or, after notice or lapse of
time or both, would result in any other impairment of the rights of the holder
of any such Authorization; and such Authorizations contain no restrictions that
are burdensome to the Company, any of its subsidiaries, any Deco Entity or
Turn-Matic; except where such failure to be valid and in full force and effect
or to be in compliance, the occurrence of any such event or the
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presence of any such restriction would not, singly or in the aggregate, have a
Material Adverse Effect.
(r) The accountants, Coopers & ▇▇▇▇▇▇▇ L.L.P., that have
certified the financial statements and supporting schedules included in the
Preliminary Offering Memorandum and the Offering Memorandum are independent
public accountants with respect to the Company and the Guarantors, as required
by the Act and the Exchange Act. The historical financial statements, together
with related schedules and notes, set forth in the Preliminary Offering
Memorandum and the Offering Memorandum comply as to form in all material
respects with the requirements applicable to registration statements on Form S-1
under the Act.
(s) The historical financial statements, together with
related schedules and notes forming part of the Offering Memorandum (and any
amendment or supplement thereto), present fairly the consolidated financial
position, results of operations and changes in financial position of (i) the
Company and its subsidiaries, (ii) MT&G, (iii) the Deco Entities and (iv)
Turn-Matic on the basis stated in the Offering Memorandum at the respective
dates or for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and statistical
information and data set forth in the Offering Memorandum (and any amendment or
supplement thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Company and its subsidiaries and of MT&G, the Deco Entities and
Turn-Matic, as the case may be.
(t) The pro forma financial statements included in the
Preliminary Offering Memorandum and the Offering Memorandum have been prepared
on a basis consistent with the historical financial statements of the Company
and its subsidiaries and of MT&G, the Deco Entities and Turn-Matic and give
effect to assumptions used in the preparation thereof on a reasonable basis and
in good faith and present fairly the historical and proposed transactions
contemplated by the Preliminary Offering Memorandum and the Offering Memorandum;
and such pro forma financial statements comply as to form in all material
respects with the requirements applicable to pro forma financial statements
included in registration statements on Form S-1 under the Act. The other pro
forma financial and statistical information and data included in the Offering
Memorandum are, in all material respects, accurately presented and prepared on a
basis consistent with the pro forma financial statements.
(u) Neither the Company nor any of its subsidiaries nor any
of the Deco Entities nor Turn-Matic is, nor after giving effect to the offering
and sale of the Series A Notes and the application of the net proceeds thereof
as described in the Offering Memorandum, will be, an "investment company," as
such term is defined in the Investment Company Act of 1940, as amended.
(v) There are no contracts, agreements or understandings
between the Company or any Guarantor and any person granting such person the
right to require the Company or such Guarantor to file a registration statement
under the Act with respect to any securities of the Company or such Guarantor or
to require the Company or such Guarantor to include such
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securities with the Notes and Subsidiary Guarantees registered pursuant to any
Registration Statement.
(w) Neither the Company, any of its subsidiaries, any Deco
Entity or Turn-Matic, nor any agent thereof acting on the behalf of them has
taken, and none of them will take, any action that might cause this Agreement or
the issuance or sale of the Series A Notes to violate Regulation G (12 C.F.R.
Part 207), Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221)
or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal
Reserve System.
(x) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act (i) has imposed (or has informed the Company or any Guarantor that it is
considering imposing) any condition (financial or otherwise) on the Company's or
any Guarantor's retaining any rating assigned to the Company or any Guarantor,
any securities of the Company or any Guarantor or (ii) has indicated to the
Company or any Guarantor that it is considering (a) the downgrading, suspension,
or withdrawal of, or any review for a possible change that does not indicate the
direction of the possible change in, any rating so assigned or (b) any change in
the outlook for any rating of the Company, any Guarantor or any securities of
the Company or any Guarantor.
(y) Since the respective dates as of which information is
given in the Offering Memorandum other than as set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), (i) there has not occurred any material adverse change
or any development involving a prospective material adverse change in the
condition, financial or otherwise, or the earnings, business, management or
operations of the Company and its subsidiaries (including, for purposes of this
subsection, the Deco Entities and Turn-Matic), taken as a whole, (ii) there has
not been any material adverse change or any development involving a prospective
material adverse change in the capital stock or in the long-term debt of the
Company, any of its subsidiaries, any Deco Entity or Turn-Matic and (iii) the
Company and its subsidiaries, the Deco Entities and Turn-Matic have not incurred
any material liability or obligation, direct or contingent.
(z) 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) under the Act.
(aa) When the Series A Notes and the Subsidiary Guarantees
are issued and delivered pursuant to this Agreement, neither the Series A Notes
nor the Subsidiary Guarantees will be of the same class (within the meaning of
Rule 144A under the Act) as any security of the Company or the Guarantors that
is listed on a national securities exchange registered under Section 6 of the
Exchange Act or that is quoted in a United States automated inter-dealer
quotation system.
(bb) No form of general solicitation or general advertising
(as defined in Regulation D under the Act) was used by the Company, the
Guarantors or any of their respective representatives (other than the Initial
Purchasers, as to whom the Company and the Guarantors
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make no representation) in connection with the offer and sale of the Series A
Notes contemplated hereby, including, but not limited to, articles, notices or
other communications published in any newspaper, magazine, or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising. No
securities of the same class as the Series A Notes have been issued and sold by
the Company within the six-month period immediately prior to the date hereof.
(cc) Prior to the effectiveness of any Registration
Statement, the Indenture is not required to be qualified under the TIA.
(dd) None of the Company, the Guarantors nor any of their
respective affiliates or any person acting on its or their behalf (other than
the Initial Purchasers, as to whom the Company and the Guarantors make no
representation) has engaged or will engage in any directed selling efforts
within the meaning of Regulation S under the Act ("Regulation S") with respect
to the Series A Notes or the Subsidiary Guarantees.
(ee) Except for offers and sales you may make on behalf of
the Company as contemplated by this Agreement, none of the Company, the
Guarantors nor any of their respective affiliates or any person acting on its or
their behalf has taken or will take any action with respect to any offer or sale
of the Notes to any non-U.S. Person (as defined in Regulation S).
(ff) The sale of the Series A Notes by the Initial
Purchasers pursuant to Regulation S is not part of a plan or scheme on the part
of the Company or any of its Subsidiaries to evade the registration provisions
of the Act.
(gg) No registration under the Act of the Series A Notes or
the Subsidiary Guarantees is required for the sale of the Series A Notes and the
Subsidiary Guarantees to the Initial Purchasers as contemplated hereby or for
the Exempt Resales assuming the accuracy of the Initial Purchasers'
representations and warranties and agreements set forth in Section 7 hereof.
(hh) Each certificate signed by any officer of the Company
or any Guarantor and delivered to the Initial Purchasers or counsel for the
Initial Purchasers shall be deemed to be a representation and warranty by the
Company or such Guarantor to the Initial Purchasers as to the matters covered
thereby.
(ii) The MT&G Acquisition Agreement has been duly
authorized, executed and delivered by each of the Company and MT&G and
constitutes the valid and binding agreement of the Company and MT&G, enforceable
against the Company and MT&G in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy,
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fraud, insolvency, fraudulent conveyance, reorganization, moratorium, or other
similar laws affecting the enforcement of creditors' rights generally and
general equitable principles.
(jj) Prior to the Closing Date, the Deco and Turn-Matic
Acquisition Agreements will be duly and validly authorized and, no later than
the Closing Date, will be duly and validly executed and delivered by the Company
and the Deco Entities and Turn-Matic, respectively, and, assuming due
authorization, execution and delivery, will constitute the valid and binding
agreements of the Company and the Deco Entities and Turn-Matic, respectively, in
accordance with their terms except as the enforcement thereof may be limited by
bankruptcy, fraud, insolvency, fraudulent conveyance, reorganization,
moratorium, or other similar laws affecting the enforcement of creditors' rights
generally and general equitable principles.
The Company acknowledges that the Initial Purchasers and, for purposes
of the opinions to be delivered to the Initial Purchasers pursuant to Section 9
hereof, counsel to the Company and the Guarantors and counsel to the Initial
Purchasers will rely upon the accuracy and truth of the foregoing
representations and hereby consents to such reliance.
7. INITIAL PURCHASERS' REPRESENTATIONS AND WARRANTIES. Each Initial
Purchaser, severally and not jointly, represents and warrants to the Company and
the Guarantors, and agrees that:
(a) Such Initial Purchaser is either a QIB or an Accredited
Institution, in either case, with such knowledge and experience in financial and
business matters as is necessary in order to evaluate the merits and risks of an
investment in the Series A Notes.
(b) Such Initial Purchaser (A) is not acquiring the Series A Notes
with a view to any distribution thereof or with any present intention of
offering or selling any of the Series A Notes in a transaction that would
violate the Act or the securities laws of any state of the United States or any
other applicable jurisdiction and (B) will be reoffering and reselling the
Series A Notes only to (x) QIBs in reliance on the exemption from the
registration requirements of the Act provided by Rule 144A, and (y) in offshore
transactions in reliance upon Regulation S under the Act.
(c) Such Initial Purchaser agrees that no form of general
solicitation or general advertising (within the meaning of Regulation D under
the Act) has been or will be used by such Initial Purchaser or any of its
representatives in connection with the offer and sale of the Series A Notes
pursuant hereto, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising.
(d) Such Initial Purchaser agrees that, in connection with Exempt
Resales, such Initial Purchaser will solicit offers to buy the Series A Notes
only from, and will offer to sell the Series A Notes only to, Eligible
Purchasers. Each of the Initial Purchasers further agrees that it will offer to
sell the Series A Notes only to, and will solicit offers to buy the
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Series A Notes only from (A) Eligible Purchasers that the Initial Purchaser
reasonably believe are QIBs, (B) Regulation S Purchasers, in each case, that
agree that (x) the Series A Notes purchased by them may be resold, pledged or
otherwise transferred within the time period referred to under Rule 144(k)
(taking into account the provisions of Rule 144(d) under the Act, if applicable)
under the Act, as in effect on the date of the transfer of such Series A Notes,
only (i) to the Company or any of its subsidiaries, (ii) to a person whom the
seller reasonably believes is a QIB purchasing for its own account or for the
account of a QIB in a transaction meeting the requirements of Rule 144A under
the Act, (iii) in an offshore transaction (as defined in Rule 902 under the Act)
meeting the requirements of Rule 904 of the Act, (iv) in a transaction meeting
the requirements of Rule 144 under the Act, (v) to an Accredited Institution
that, prior to such transfer, furnishes the Trustee a signed letter containing
certain representations and agreements relating to the registration of transfer
of such Series A Note (the form of which is attached to the Indenture) and an
opinion of counsel acceptable to the Company that such transfer is in compliance
with the Act, (vi) in accordance with another exemption from the registration
requirements of the Act (and based upon an opinion of counsel acceptable to the
Company) or (vii) pursuant to an effective registration statement and, in each
case, in accordance with the applicable securities laws of any state of the
United States or any other applicable jurisdiction and (y) they will deliver to
each person to whom such Series A Notes or an interest therein is transferred a
notice substantially to the effect of the foregoing.
(e) None of such Initial Purchasers nor any of their
affiliates or any person acting on its or their behalf has engaged or will
engage in any directed selling efforts within the meaning of Regulation S with
respect to the Series A Notes or the Subsidiary Guarantees.
(f) The Series A Notes offered and sold by such Initial
Purchaser pursuant hereto in reliance on Regulation S have been and will be
offered and sold only in offshore transactions.
(g) The sale of the Series A Notes offered and sold by such
Initial Purchaser pursuant hereto in reliance on Regulation S is not part of a
plan or scheme to evade the registration provisions of the Act. All offers and
sales of the Series A Notes by such Initial Purchaser prior to the expiration of
the restricted period specified in Rule 903(c)(2) of Regulation S will be made
only: (i) in accordance with the provisions of Rule 903 or 904, (ii) pursuant to
registration of the Series A Notes under the Act or (iii) pursuant to an
available exemption from the registration requirements of the Act.
(h) Such Initial Purchaser further represents and agrees
that (i) it has not offered or sold and will not offer or sell any Series A
Notes to persons in the United Kingdom prior to the expiration of the period of
six months from the issue date of the Series A Notes, except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their business or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, (ii) it has complied and will comply with
all applicable provisions of the Financial Services ▇▇▇ ▇▇▇▇ with respect to
anything done by it in relation to the Series A Notes in, from or otherwise
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involving the United Kingdom and (iii) it has only issued or passed on and will
only issue or pass on in the United Kingdom any document received by it in
connection with the issuance of the Series A Notes to a person who is of a kind
described in Article 11(3) of the Financial Services Act of 1986 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom the document may
otherwise lawfully be issued or passed on.
(i) Such Initial Purchaser agrees that it will not offer,
sell or deliver any of the Series A Notes in any jurisdiction outside the United
States except under circumstances that will result in compliance with the
applicable laws thereof, and that it will take at its own expense whatever
action is required to permit its purchase and resale of the Series A Notes in
such jurisdictions. Such Initial Purchaser understands that no action has been
taken to permit a public offering in any jurisdiction outside the United States
where action would be required for such purpose.
The Initial Purchasers acknowledge that the Company and the
Guarantors and, for purposes of the opinions to be delivered to each Initial
Purchaser pursuant to Section 9 hereof, counsel to the Company and the
Guarantors and counsel to the Initial Purchasers will rely upon the accuracy and
truth of the foregoing representations and the Initial Purchasers hereby consent
to such reliance.
8. INDEMNIFICATION.
(a) The Company and each Guarantor agree, jointly and
severally, to indemnify and hold harmless the Initial Purchasers, their
directors, their officers and each person, if any, who controls such Initial
Purchaser within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages, liabilities
and judgments (including, without limitation, any legal or other expenses
incurred in connection with investigating or defending any matter, including any
action, that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Offering Memorandum (or any amendment or
supplement thereto), the Preliminary Offering Memorandum or any Rule 144A
Information provided by the Company or any Guarantor to any holder or
prospective purchaser of Series A Notes pursuant to Section 5(h) or caused by
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or judgments are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to an Initial Purchaser furnished in
writing to the Company by such Initial Purchaser; provided, however, that the
foregoing indemnity agreement with respect to any Preliminary Offering
Memorandum shall not inure to the benefit of any Initial Purchaser who failed to
deliver a Final Offering Memorandum (as then amended or supplemented, provided
by the Company to the several Initial Purchasers in the requisite quantity and
on a timely basis to permit proper delivery on or prior to the Closing date) to
the person asserting any losses, claims, damages and liabilities and judgments
caused by any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Offering Memorandum, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, if such material
misstatement or
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omission or alleged material misstatement or omission was cured in the Final
Offering Memorandum.
(b) The Initial Purchasers agree to indemnify and hold
harmless the Company and the Guarantors, and their respective directors and
officers and each person, if any, who controls (within the meaning of Section 15
of the Act or Section 20 of the Exchange Act) the Company or the Guarantors, to
the same extent as the foregoing indemnity from the Company and the Guarantors
to the Initial Purchasers but only with reference to information relating to the
Initial Purchasers furnished in writing to the Company by the Initial Purchasers
expressly for use in the Preliminary Offering Memorandum or the Offering
Memorandum.
(c) In case any action shall be commenced involving any
person in respect of which indemnity may be sought pursuant to Section 8(a) or
8(b) (the "indemnified party"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 8(a) and 8(b), the Initial Purchasers shall not
be required to assume the defense of such action pursuant to this Section 8(c),
but may employ separate counsel and participate in the defense thereof, but the
fees and expenses of such counsel, except as provided below, shall be at the
expense of the Initial Purchasers). Any indemnified party shall have the right
to employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified parties
and all such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities
Corporation, in the case of the parties indemnified pursuant to Section 8(a),
and by the Company, in the case of parties indemnified pursuant to Section 8(b).
The indemnifying party shall indemnify and hold harmless the indemnified party
from and against any and all losses, claims, damages, liabilities and judgments
by reason of any settlement of any action (i) effected with its written consent
or (ii) effected without its written consent if the settlement is entered into
more than twenty business days after the indemnifying party shall have received
a request from the indemnified party for reimbursement for the fees and expenses
of counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have
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failed to comply with such reimbursement request. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could
have been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party.
(d) To the extent the indemnification provided for in this
Section 8 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Initial Purchasers on the
other hand from the offering of the Series A Notes or (ii) if the allocation
provided by clause 8(d)(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 8(d)(i) above but also the relative fault of the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Guarantors, on the one hand and the Initial Purchasers, on the other hand, shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Series A Notes (after underwriting discounts and commissions,
but before deducting expenses) received by the Company, and the total discounts
and commissions received by the Initial Purchasers bear to the total price to
investors of the Series A Notes, in each case as set forth in the table on the
cover page of the Offering Memorandum. The relative fault of the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand,
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or any
Guarantor, 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 Company, the Guarantors and the Initial Purchasers agree that
it would not be just and equitable if contribution pursuant to this Section 8(d)
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 the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such indemnified party in connection with investigating or defending any
matter, including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section
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8, the Initial Purchasers shall not be required to contribute any amount
in excess of the amount by which the total discounts and commissions received by
such Initial Purchasers exceeds the amount of any damages which the Initial
Purchasers have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 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 8(d) are several in proportion to the respective
principal amount of Series A Notes purchased by each of the Initial Purchasers
hereunder and not joint.
(e) The remedies provided for in this Section 8 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
9. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The obligations of
the Initial Purchasers to purchase the Series A Notes under this Agreement are
subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the
Guarantors contained in this Agreement shall be true and correct on the Closing
Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have
occurred any downgrading, suspension or withdrawal of, nor shall any notice have
been given of any potential or intended downgrading, suspension or withdrawal
of, or of any review (or of any potential or intended review) for a possible
change that does not indicate the direction of the possible change in, any
rating of the Company or any Guarantor or any securities of the Company or any
Guarantor (including, without limitation, the placing of any of the foregoing
ratings on credit watch with negative or developing implications or under review
with an uncertain direction) by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act, (ii) there shall not have occurred any change, nor shall any notice have
been given of any potential or intended change, in the outlook for any rating of
the Company or any Guarantor or any securities of the Company or any Guarantor
by any such rating organization and (iii) no such rating organization shall have
given notice that it has assigned (or is considering assigning) a lower rating
to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given
in the Offering Memorandum other than as set forth in the Offering Memorandum
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there shall not have occurred any change or any development
involving a prospective change in the condition, financial or otherwise, or the
earnings, business, management or operations of the Company and its subsidiaries
(including, for purposes of this subsection, the Deco Entities and Turn-Matic),
taken as a whole, (ii) there shall not have been any change or any development
involving a prospective change in the capital stock or in the long-term debt of
the Company, any of its subsidiaries, any of the Deco Entities or Turn-Matic and
(iii) neither the Company nor any of its subsidiaries, nor any Deco Entity or
Turn-Matic shall have incurred any liability or obligation,
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direct or contingent, the effect of which, in any such case described in clause
9(c)(i), 9(c)(ii) or 9(c)(iii), in the judgment of ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation, is material and adverse and, in the judgment of
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, makes it impracticable to
market the Series A Notes on the terms and in the manner contemplated in the
Offering Memorandum.
(d) You shall have received on the Closing Date certificates
dated the Closing Date, signed by Officers of the Company and each of the
Guarantors, confirming the matters set forth in Sections 6(y), 9(a) and 9(b) and
stating that each of the Company and the Guarantors has complied with all the
agreements and satisfied all of the conditions herein contained and required to
be complied with or satisfied on or prior to the Closing Date.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Initial Purchasers), dated the Closing
Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, counsel for the Company and the Guarantors, to the
effect that:
(i) Each of the Company, its subsidiaries, each Deco
Entity and Turn-Matic has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
its jurisdiction of incorporation and has the corporate
power and authority to carry on its business and to own,
lease and operate its properties as described in the
Offering Memorandum.
(ii) Based solely on certificates of public officials,
each of the Company, its subsidiaries, each Deco Entity and
Turn-Matic is duly qualified and is in good standing as a
foreign corporation authorized to do business in the states
set forth in such opinion or an exhibit thereto.
(iii) All of the outstanding shares of capital stock of
each of the Company's subsidiaries have been duly authorized
and validly issued and are fully paid and non-assessable,
and are owned by the Company, free and clear of any Lien,
except that such counsel need express no opinion as to the
capital stock of either the Deco Entities or Turn-Matic.
(iv) The Series A Notes have been duly authorized and,
when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by
the Initial Purchasers in accordance with the terms of this
Agreement, will be entitled to the
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benefits of the Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with
their terms except as (x) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (y) equitable principles of
general applicability (regardless of whether enforceability
is considered in a proceeding at law or in equity).
(v) The Subsidiary Guarantees have been duly authorized
by each Guarantor, except the Deco Entities and Turn-Matic,
and will be duly authorized by the Deco Entities and
Turn-Matic immediately upon consummation of the
Acquisitions. When the Series A Notes are executed and
authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement,
the Subsidiary Guarantees endorsed thereon will be entitled
to the benefits of the Indenture and will be valid and
binding obligations of the Guarantors, enforceable in
accordance with their terms except as (x) the enforceability
thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (y) equitable
principles of general applicability (regardless of whether
enforceability is considered in a proceeding at law or in
equity).
(vi) The Indenture has been duly authorized, executed
and delivered by the Company and each Guarantor (except the
Deco Entities and Turn-Matic) and is a valid and binding
agreement of the Company and each Guarantor (except the Deco
Entities and Turn-Matic), enforceable against the Company
and each Guarantor (except Deco and Turn-Matic) in
accordance with its terms except as (x) the enforceability
thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (y) equitable
principles of general applicability (regardless of whether
enforceability is considered in a proceeding at law or in
equity); the Indenture will be duly authorized, executed and
delivered by the Deco Entities and Turn-Matic immediately
upon consummation of the Acquisitions.
(vii) This Agreement has been duly authorized, executed
and delivered by the Company and the Guarantors (except the
Deco Entities and Turn-Matic); this Agreement will be duly
authorized, executed and delivered by the Deco Entities and
Turn-Matic immediately upon consummation of the
Acquisitions.
(viii) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and each
of the Guarantors (except the Deco Entities and Turn-Matic)
and is a valid and binding agreement of the Company and each
Guarantor (except the Deco Entities and Turn-Matic),
enforceable against the Company and each Guarantor (except
the Deco Entities and Turn-Matic) in accordance with
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its terms, except as (x) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (y) equitable principles of
general applicability (regardless of whether enforceability
is considered in a proceeding at law or in equity); the
Registration Rights Agreement will be duly authorized,
executed and delivered by the Deco Entities and Turn-Matic
immediately upon consummation of the Acquisitions.
(ix) The Series B Notes have been duly authorized.
(x) The statements under the captions "The
Acquisitions," "Management," "Description of Notes,"
"Description of Other Debt" and "Plan of Distribution"
(other than such statements concerning the Deco Entities'
agreement with DLJ) in the Offering Memorandum, insofar as
such statements constitute a summary of the legal matters or
documents referred to therein, fairly present in all
material respects such legal matters, documents and
proceedings.
(xi) The execution, delivery and performance of this
Agreement and the other Operative Documents by the Company
and each of the Guarantors, the compliance by the Company
and each of the Guarantors with all provisions hereof and
thereof and the consummation of the transactions described
herein and therein will not (i) require any consent,
approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except such
as may be required under the securities or Blue Sky laws of
the various states), (ii) conflict with or constitute a
breach of any of the terms or provisions of, or a default
under, the charter or by-laws of the Company or any of its
subsidiaries or any indenture, loan agreement, mortgage,
lease or other agreement or instrument to which the Company,
any of its subsidiaries, any Deco Entity or Turn-Matic is a
party or by which the Company, any of its subsidiaries, any
Deco Entity or Turn-Matic or their respective property is
bound, and which is either (A) identified on a schedule or
exhibit to one of the Acquisition Agreements or (B) filed or
incorporated by reference as an exhibit to the Company's
Annual Report on Form 10-K for the fiscal year ended October
31, 1997 (any of the foregoing, an "Other Contract"), (iii)
violate or conflict with any applicable law, rule, or
regulation, or any judgment, order or decree known to such
counsel of any court or any governmental body or agency
having jurisdiction over the Company, any of its
subsidiaries, any Deco Entity or Turn-Matic or their
respective property, (iv) result in the imposition or
creation of (or the obligation to create or impose) a Lien
under, any Other Contract.
(xii) Such counsel does not know of any legal or
governmental proceedings pending or threatened to which the
Company, any of its subsidiaries, any Deco Entity or
Turn-Matic is or could be a party or to
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which any of their respective property is or could be
subject, other than any disclosed in the Offering Memorandum
or a schedule or exhibit to one of the Acquisition
Agreements (it being understood that such counsel has not
conducted any search of any court docket or other
governmental records in connection therewith).
(xiii) Neither the Company nor any of its subsidiaries
is nor, after giving effect to the offering and sale of the
Series A Notes and the application of the net proceeds
thereof as described in the Offering Memorandum, will be, an
"investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(xiv) To the best of such counsel's knowledge, there are
no contracts, agreements or understandings between the
Company or any Guarantor and any person granting such person
the right to require the Company or such Guarantor to file a
registration statement under the Act with respect to any
securities of the Company or such Guarantor or to require
the Company or such Guarantor to include such securities
with the Notes and Subsidiary Guarantees registered pursuant
to any Registration Statement.
(xv) The Indenture complies as to form in all material
respects with the requirements of the TIA, and the rules and
regulations of the Commission applicable to an indenture
which is qualified thereunder. It is not necessary in
connection with the offer, sale and delivery of the Series A
Notes to the Initial Purchasers in the manner contemplated
by this Agreement or in connection with the Exempt Resales
to qualify the Indenture under the TIA.
(xvi) No registration under the Act of the Series A
Notes is required for the sale of the Series A Notes to the
Initial Purchasers as contemplated by this Agreement or for
the Exempt Resales assuming that (i) each Initial Purchaser
is a QIB or an Accredited Institution, (ii) the accuracy of,
and compliance with, the Initial Purchasers' representations
and agreements contained in Section 7 of this Agreement, and
(iii) the accuracy of the representations of the Company and
the Guarantors set forth in Sections 5(h) and 6(bb), (dd)
and (ee) of this Agreement.
(xvii) Such counsel has no reason to believe that, as of
the date of the Offering Memorandum or as of the Closing
Date, the Offering Memorandum, as amended or supplemented,
if applicable (except for the financial statements and other
financial data included therein, as to which such counsel
need not express any belief) contains any untrue statement
of a material fact or omits 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.
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The opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ described in Section 9(e) above
shall be rendered to you at the request of the Company and the Guarantors and
shall so state therein. Such opinion may be limited to the laws of the State of
Michigan, United States federal law and the General Corporation Law of the State
of Delaware and, for purposes of the enforceability opinion, may assume that New
York law is identical to Michigan law. In giving such opinion with respect to
the matters covered by Section 9(e)(xx), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ may state that their
opinion and belief are based upon their participation in the preparation of the
Offering Memorandum and any amendments or supplements thereto and review and
discussion of the contents thereof, but are without independent check or
verification except as specified.
(f) The Initial Purchasers shall have received on the
Closing Date an opinion, dated the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel
for the Initial Purchasers, in form and substance reasonably satisfactory to the
Initial Purchasers.
(g) The Initial Purchasers shall have received on the
Closing Date an opinion, dated the Closing Date and addressed to the Company,
which expressly permits the Initial Purchasers to rely thereon, of Honigman,
Miller, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Deco Entities, relating to the Deco
Acquisition.
(h) The Initial Purchasers shall have received on the
Closing Date an opinion, dated the Closing Date and addressed to the Company,
which expressly permits the Initial Purchasers to rely thereon, of ▇▇▇, ▇▇▇▇▇▇▇
& Giarmarco, P.C., counsel to Turn-Matic, relating to the Turn-Matic
Acquisition.
(i) The Initial Purchasers shall have received, at the
time this Agreement is executed and at the Closing Date, letters dated the date
hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Initial Purchasers from Coopers & ▇▇▇▇▇▇▇, L.L.P.,
independent public accountants, containing the information and statements of the
type ordinarily included in accountants' "comfort letters" to the Initial
Purchasers with respect to the financial statements and certain financial
information contained in the Offering Memorandum (including with respect to
MT&G, the Deco Entities and Turn-Matic).
(j) The Series A Notes shall have been approved by the
NASD for trading and duly listed in PORTAL.
(k) The Initial Purchasers shall have received a
counterpart, conformed as executed, of the Indenture which shall have been
entered into by the Company, the Guarantors (except the Deco Entities and
Turn-Matic) and the Trustee; the Initial Purchasers shall have received
signature pages of the Indenture for delivery immediately upon consummation of
the Acquisitions from the Deco Entities and Turn-Matic.
(l) The Company and the Guarantors (except the Deco
Entities and Turn-Matic) shall have executed the Registration Rights Agreement
and the Initial Purchasers shall have received an original copy thereof, duly
executed by the Company and the Guarantors (except the Deco Entities and
Turn-Matic); the Initial Purchasers shall have received signature
26
28
pages of the Registration Rights Agreement for delivery immediately upon
consummation of the Acquisitions from the Deco Entities and Turn-Matic.
(m) Neither the Company nor the Guarantors shall have
failed at or prior to the Closing Date to perform or comply with any of the
agreements herein contained and required to be performed or complied with by the
Company or the Guarantors, as the case may be, at or prior to the Closing Date.
(n) The Company and the Guarantors (except the Deco
-Entities and Turn-Matic) shall have executed this Agreement and the Initial
Purchasers shall have received an original copy thereof, duly executed by the
Company and the Guarantors (except the Deco Entities and Turn-Matic); the
Initial Purchasers shall have received signature pages of this Agreement for
delivery immediately upon consummation of the Acquisitions from the Deco
Entities and Turn-Matic.
(o) Prior to or on the Closing Date all conditions to
the consummation of the Acquisitions shall have been satisfied (or, with respect
to any condition to the Company's obligations, waived with the permission of
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation) and the parties to the
Acquisition Agreements shall be, in the reasonable judgment of the Initial
Purchasers, prepared to close immediately, in each case on substantially the
same terms as described in the Offering Memorandum.
10. EFFECTIVENESS OF AGREEMENT AND TERMINATION. This
Agreement shall become effective upon the execution and delivery of this
Agreement by the parties hereto.
This Agreement may be terminated at any time on or prior to
the Closing Date by the Initial Purchasers by written notice to the Company if
any of the following has occurred: (i) any outbreak or escalation of hostilities
or other national or international calamity or crisis or change in economic
conditions or in the financial markets of the United States or elsewhere that,
in the Initial Purchasers' judgment, is material and adverse and, in the Initial
Purchasers' judgment, makes it impracticable to market the Series A Notes on the
terms and in the manner contemplated in the Offering Memorandum, (ii) the
suspension or material limitation of trading in securities or other instruments
on the New York Stock Exchange, the American Stock Exchange, the Chicago Board
of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade
or the NASDAQ National Market or limitation on prices for securities or other
instruments on any such exchange or the NASDAQ National Market, (iii) the
suspension of trading of any securities of the Company or any Guarantor on any
exchange or in the over-the-counter market, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your opinion
materially and adversely affects, or will materially and adversely affect, the
business, prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole, (v) the declaration of a banking
moratorium by either federal or New York State authorities or (vi) the taking of
any action by any federal, state or local government or agency in respect of its
monetary or fiscal affairs which in your opinion has a material adverse effect
on the financial markets in the United States.
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If on the Closing Date any one or more of the Initial
Purchasers shall fail or refuse to purchase the Series A Notes which it or they
have agreed to purchase hereunder on such date and the aggregate principal
amount of the Series A Notes which such defaulting Initial Purchasers or Initial
Purchasers, as the case may be, agreed but failed or refused to purchase is not
more than one-tenth of the aggregate principal amount of the Series A Notes to
be purchased on such date by all Initial Purchasers, each non-defaulting Initial
Purchasers shall be obligated severally, in the proportion which the principal
amount of the Series A Notes set forth opposite its name in Schedule B bears to
the aggregate principal amount of the Series A Notes which all the
non-defaulting Initial Purchasers, as the case may be, have agreed to purchase,
or in such other proportion as you may specify, to purchase the Series A Notes
which such defaulting Initial Purchasers or Initial Purchasers, as the case may
be, agreed but failed or refused to purchase on such date; provided that in no
event shall the aggregate principal amount of the Series A Notes which any
Initial Purchasers has agreed to purchase pursuant to Section 2 hereof be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such principal amount of the Series A Notes without the written consent of such
Initial Purchasers. If on the Closing Date any Initial Purchasers or Initial
Purchasers shall fail or refuse to purchase the Series A Notes and the aggregate
principal amount of the Series A Notes with respect to which such default occurs
is more than one-tenth of the aggregate principal amount of the Series A Notes
to be purchased by all Initial Purchasers and arrangements satisfactory to the
Initial Purchasers and the Company for purchase of such the Series A Notes are
not made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Initial Purchasers and the
Company. In any such case which does not result in termination of this
Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Offering Memorandum or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Initial Purchasers from liability in respect of any
default of any such Initial Purchasers under this Agreement.
11. MISCELLANEOUS. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company or any
Guarantor, to Newcor, Inc., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇,
▇▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇, and (ii) if to the Initial Purchasers, ▇▇▇▇▇▇▇▇▇, Lufkin
& ▇▇▇▇▇▇▇▇ Securities Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Syndicate Department, or in any case to such other address as the
person to be notified may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company, the Guarantors
and the Initial Purchasers set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the Series A Notes, regardless of (i) any investigation, or
statement as to the results thereof, made by or on behalf of the Initial
Purchasers, the officers or directors of the Initial Purchasers, any person
controlling the Initial Purchasers, the Company, any Guarantor, the officers or
directors of the Company or any Guarantor, or any person controlling the Company
or any Guarantor, (ii) acceptance of the Series A Notes and payment for them
hereunder and (iii) termination of this Agreement.
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If for any reason the Series A Notes are not delivered by or
on behalf of the Company as provided herein (other than as a result of any
termination of this Agreement pursuant to Section 10), the Company and each
Guarantor, jointly and severally, agree to reimburse the Initial Purchasers for
all out-of-pocket expenses (including the fees and disbursements of counsel)
incurred by them. Notwithstanding any termination of this Agreement, the Company
shall be liable for all expenses which it has agreed to pay pursuant to Section
5(i) hereof. The Company and each Guarantor also agree, jointly and severally,
to reimburse the Initial Purchasers and its officers, directors and each person,
if any, who controls such Initial Purchasers within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act for any and all fees and expenses
(including without limitation the fees and expenses of counsel) incurred by them
in connection with enforcing their rights under this Agreement (including
without limitation its rights under this Section 8).
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company, the
Guarantors, the Initial Purchasers, the Initial Purchasers' directors and
officers, any controlling persons referred to herein, the directors of the
Company and the Guarantors and their respective successors and assigns, all as
and to the extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Series A Notes from the
Initial Purchasers merely because of such purchase.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Guarantors and the Initial Purchasers.
Very truly yours,
NEWCOR, INC.
By: /s/ W. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Name: W. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and CEO
/s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: VP and CFO
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GRAND MACHINING COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
DECO TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
DECO INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
ROCHESTER GEAR, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
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PLASTRONICS PLUS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇▇ & COMPANY SECURITIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
ING BARING (U.S.) SECURITIES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: VP
31
33
TURN-MATIC, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
32
34
SCHEDULE A
GUARANTORS
Rochester Gear, Inc.
Plastronics Plus, Inc.
Upon consummation of the Deco Acquisition and the Turn-Matic Acquisition:
Grand Machining Company
Deco Technologies, Inc.
Deco International, Inc.
Turn-Matic, Inc.
35
SCHEDULE B
SUBSIDIARIES
Rochester Gear, Inc.
Plastronics Plus, Inc.
Upon consummation of the Deco Acquisition and the Turn-Matic Acquisition:
Grand Machining Company
Deco Technologies, Inc.
Deco International, Inc.
Turn-Matic, Inc.
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SCHEDULE C
Principal Amount
Initial Purchasers of Notes
------------------ ----------------
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation................................ $75,000,000
▇▇▇▇▇▇▇▇ & Company Securities, Inc. ...................... $31,250,000
ING Baring (U.S.) Securities, Inc......................... $18,750,000
Total............................................ $125,000,000
37
EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT
