EXHIBIT 10.10
TRANSDIGM INC.
10 3/8% SENIOR SUBORDINATED NOTES DUE 2008
PURCHASE AGREEMENT
June 4, 2002
DEUTSCHE BANK SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
c/o Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
TransDigm Inc., a Delaware corporation (the "COMPANY"), and TransDigm
Holdings Company, a Delaware corporation which owns 100% of the outstanding
capital stock of the Company ("HOLDINGS" together with the Company and the
Guarantors (as defined in Section 1 below), the "ISSUERS"), hereby confirm their
agreement with you (the "INITIAL PURCHASERS"), as set forth below (the "PURCHASE
AGREEMENT" or this "AGREEMENT").
1. THE SECURITIES. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the Initial Purchasers
$75,000,000 aggregate principal amount of its 10 3/8% Senior Subordinated Notes
due 2008 (the "NOTES"). The Notes will be unconditionally guaranteed ( the
"GUARANTEES", and together with the Notes, the "SECURITIES") on a senior
subordinated basis by Holdings, ▇▇▇▇▇ Rite Aerospace, Inc., Champion Aerospace
Inc., Christie Electric Corp., Marathon Power Technologies Company and ZMP, Inc.
(collectively, the "GUARANTORS"). The Securities are to be issued under an
indenture (the "INDENTURE") dated as of December 3, 1998 as supplemented on
April 23, 1999 and June 26, 2001 by and among the Company, the Guarantors and
State Street Bank and Trust Company, as trustee (the "TRUSTEE").
The Securities will be offered and sold to the Initial Purchasers
without being registered under the Securities
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Act of 1933, as amended (the "ACT"), in reliance on exemptions therefrom.
In connection with the sale of the Securities, the Issuers have
prepared a preliminary offering memorandum dated May 29, 2002 (the "PRELIMINARY
MEMORANDUM"), and a final offering memorandum dated June 4, 2002 (the "FINAL
MEMORANDUM"; the Preliminary Memorandum and the Final Memorandum each herein
being referred to as a "MEMORANDUM") setting forth or including, among other
things, a description of the terms of the Securities, a description of the terms
of the offering of the Securities, and a description of the Issuers and any
material developments relating to the Issuers occurring after the date of the
most recent historical financial statements included therein.
The Initial Purchasers and their direct and indirect transferees of
the Securities will be entitled to the benefits of the Registration Rights
Agreement, substantially in the form attached hereto as EXHIBIT A (the
"REGISTRATION RIGHTS AGREEMENT"), pursuant to which the Company and the
Guarantors have agreed, among other things, to file a registration statement
(the "REGISTRATION STATEMENT") with the Securities and Exchange Commission (the
"COMMISSION") registering the Securities, or the Exchange Notes (as defined in
the Registration Rights Agreement) under the Act.
2. REPRESENTATIONS AND WARRANTIES. Each of the Issuers, jointly
and severally, represents and warrants to and agrees with the Initial Purchasers
that:
(a) Neither the Preliminary Memorandum as of the date thereof
nor the Final Memorandum nor any amendment or supplement thereto as of the date
thereof and at all times subsequent thereto up to the Closing Date (as defined
in Section 3 below) contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact 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 set forth
in this Section 2(a) do not apply to statements or omissions made in reliance
upon and in conformity with information relating to the Initial Purchasers
furnished to the Issuers in writing by
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the Initial Purchasers expressly for use in the Preliminary Memorandum, the
Final Memorandum or any amendment or supplement thereto.
(b) The only subsidiary of Holdings is the Company and the only
subsidiaries of the Company are those entities listed on Schedule II attached
hereto (such subsidiaries of the Company, collectively the "Subsidiaries"); all
of the outstanding shares of capital stock of the Company and the Subsidiaries
have been, and as of the Closing Date will be, duly authorized and validly
issued, are fully paid and nonassessable and were not issued in violation of any
preemptive or similar rights; except as set forth in the Final Memorandum, all
of the outstanding shares of capital stock of the Company and the Subsidiaries
will be free and clear of all liens, encumbrances, equities and claims or
restrictions on transferability (other than those imposed by the Act and the
securities or "Blue Sky" laws of certain jurisdictions) or voting; except as set
forth in the Final Memorandum there are no (i) options, warrants or other rights
to purchase, (ii) agreements or other obligations to issue or (iii) other rights
to convert any obligation into, or exchange any securities for, shares of
capital stock of or ownership interests in the Company and the Subsidiaries
outstanding. Except for the Company (with respect to Holdings) and the
Subsidiaries, neither Holdings nor the Company own, directly or indirectly, any
shares of capital stock or any other equity or long-term debt securities or have
any equity interest in any firm, partnership, joint venture or other entity.
(c) Each of the Issuers is duly incorporated, validly existing
and in good standing under the laws of its respective jurisdiction of
incorporation and has all requisite corporate power and authority to own its
properties and conduct its business as now conducted and as described in the
Final Memorandum; each of the Issuers is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions where the
ownership or leasing of its properties or the conduct of its business requires
such qualification, except where the failure to be so qualified would not,
individually or in the aggregate, have a material adverse effect on the
business, condition (financial or otherwise), prospects or results of operations
of the Issuers, Marathon Power Technologies Limited and TranDigm Export, Inc.
taken as a whole (any such event, a "MATERIAL ADVERSE EFFECT").
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(d) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Notes, the Exchange Notes
and the Private Exchange Notes (as defined in the Registration Rights
Agreement). Each of the Guarantors has all requisite corporate power and
authority to execute, deliver and perform its obligations under the Guarantees
and the guarantees of the Exchange Notes and the Private Exchange Notes. The
Notes and the Guarantees, when issued, will be in the form contemplated by the
Indenture. The Notes, the Exchange Notes and the Private Exchange Notes, have
each been duly and validly authorized by the Company and the Guarantees and the
guarantees of the Exchange Notes and the Private Exchange Notes have been duly
and validly authorized by the Guarantors, and, when executed by the Company and
the Guarantors, respectively, and authenticated by the Trustee in accordance
with the provisions of the Indenture and when the Notes are delivered to and
paid for by the Initial Purchasers in accordance with the terms of this
Agreement or the Exchange Notes or the Private Exchange Notes are issued in
accordance with the Registration Rights Agreement, will constitute valid and
legally binding obligations of each of the Company and the Guarantors, entitled
to the benefits of the Indenture, and enforceable against each of the Company
and the Guarantors in accordance with their terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally, and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be brought.
(e) Each of the Issuers has all requisite corporate power and
authority to perform its obligations under the Indenture. The Indenture meets
the requirements for qualification under the Trust Indenture Act of 1939, as
amended (the "TIA"). The Indenture has been duly and validly authorized,
executed and delivered by the Issuers (assuming the due authorization execution
and delivery by the Trustee) and constitutes a valid and legally binding
agreement of each of the Issuers, enforceable against the Issuers in accordance
with its terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally and
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(ii) general principles of equity and the discretion of the court before which
any proceeding therefor may be brought.
(f) Each of the Issuers has all requisite corporate power and
authority to execute, deliver and perform its obligations under the Registration
Rights Agreement. The Registration Rights Agreement has been duly and validly
authorized by the Issuers and, when executed and delivered by the Issuers, will
constitute a valid and legally binding agreement of the Issuers, enforceable
against the Issuers in accordance with its terms, except that (A) the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought and (B) any rights to indemnity or contribution
thereunder may be limited by federal and state securities laws and public policy
considerations.
(g) Each of the Issuers has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby. This Agreement and the
consummation by the Issuers of the transactions contemplated hereby have been
duly and validly authorized by each of the Issuers. This Agreement has been duly
executed and delivered by each of the Issuers.
(h) No consent, approval, authorization or order of any court or
governmental agency or body, or third party is required for the issuance and
sale by the Issuers of the Securities to the Initial Purchasers or the
consummation by the Issuers of the other transactions contemplated hereby,
except (i) such as have been obtained (ii) such as would not have a Material
Adverse Effect and (iii) such as may be required under state securities or "Blue
Sky" laws in connection with the purchase and resale of the Securities by the
Initial Purchasers and except with respect to the registration of the Exchange
Notes and Private Exchange Notes, if applicable, pursuant to the Registration
Rights Agreement and the qualification of the Indenture under the TIA. None of
the Issuers is (i) in violation of its respective certificate of incorporation
or
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bylaws (or similar organizational document), (ii) in breach or violation of any
statute, judgment, decree, order, rule or regulation applicable to any of them
or any of their respective properties or assets, except as disclosed in the
Final Memorandum and except for any such breach or violation which would not,
individually or in the aggregate, have a Material Adverse Effect, or (iii) in
breach of or default under (nor has any event occurred which, with notice or
passage of time or both, would constitute a default under) or in violation of
any of the terms or provisions of any indenture, mortgage, deed of trust, loan
agreement, note, lease, license, franchise agreement, permit, certificate,
contract or other agreement or instrument to which any of them is a party or to
which any of them or their respective properties or assets is subject
(collectively, "CONTRACTS"), except for any such breach, default, violation or
event which would not, individually or in the aggregate, have a Material Adverse
Effect.
(i) The execution, delivery and performance by the Issuers of this
Agreement, the Indenture and Registration Rights Agreement and the consummation
by the Issuers of the transactions contemplated hereby and thereby (including,
without limitation, the issuance and sale of the Securities to the Initial
Purchasers) has not, in the case of the Indenture only, and will not conflict
with or constitute or result in a breach of or a default under (or an event
which with notice or passage of time or both would constitute a default under)
or violation of any of (i) the terms or provisions of any Contract, except for
any such conflict, breach, violation, default or event which would not,
individually or in the aggregate, have a Material Adverse Effect, (ii) the
certificate of incorporation or bylaws (or similar organizational document) of
any of the Issuers, or (iii) (assuming compliance with all applicable state
securities or "Blue Sky" laws and assuming the accuracy of the representations
and warranties of the Initial Purchasers in Section 8 hereof and except with
respect to the registration of the Exchange Notes and Private Exchange Notes, if
applicable, pursuant to the Registration Rights Agreement and the qualification
of the Indenture under the TIA) any statute, judgment, decree, order, rule or
regulation applicable to any of the Issuers or any of their respective
properties or assets, except for any such conflict, breach or violation which
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would not, individually or in the aggregate, have a Material Adverse Effect.
(j) The audited consolidated financial statements of Holdings
included in the Final Memorandum present fairly in all material respects the
financial position, results of operations and cash flows of Holdings at the
dates and for the periods to which they relate and have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis, except as otherwise stated therein. The unaudited summary and selected
financial and statistical data in the Final Memorandum present fairly in all
material respects the information shown therein and have been prepared and
compiled on a basis consistent with the audited financial statements included
therein, except as otherwise stated therein. Deloitte & Touche LLP is an
independent public accounting firm within the meaning of the Act and the rules
and regulations promulgated thereunder.
(k) The audited consolidated financial statements of Federal-Mogul
Aviation, Inc. included in the Final Memorandum present fairly in all material
respects the financial position, results of operations and cash flows of Federal
Mogul Aviation, Inc. at the dates and for the periods to which they relate and
have been prepared in accordance with generally accepted accounting principles
applied on a consistent basis, except as otherwise stated therein. Ernst & Young
LLP is an independent public accounting firm within the meaning of the Act and
the rules and regulations promulgated thereunder.
(l) The pro forma financial statements (including the notes
thereto) and the other pro forma financial information included in the Final
Memorandum (i) comply as to form in all material respects with the applicable
requirements of Regulation S-X promulgated under the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), (ii) except as stated therein, have been
prepared in accordance with the Commission's rules and guidelines with respect
to pro forma financial statements, and (iii) have been properly computed on the
bases described therein; the assumptions used in the preparation of the pro
forma financial data and other pro forma financial information included in the
Final Memorandum are reasonable and
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the adjustments used therein are appropriate to give effect to the transactions
or circumstances referred to therein.
(m) Except as set forth in the Final Memorandum, there is not
pending or, to the knowledge of the Issuers, threatened any action, suit,
proceeding, inquiry or investigation to which any of the Issuers is a party, or
to which the property or assets of any of the Issuers are subject, before or
brought by any court, arbitrator or governmental agency or body which, if
determined adversely to or any of the Issuers, would, individually or in the
aggregate, have a Material Adverse Effect or which seeks to restrain, enjoin,
prevent the consummation of or otherwise challenge the issuance or sale of the
Securities to be sold hereunder or the consummation of the other transactions
described in the Final Memorandum.
(n) Each of the Issuers possesses all licenses, permits,
certificates, approvals and other authorizations from, and has made all
declarations and filings with, all federal, state, local and other governmental
authorities and all courts, presently required or necessary to own or lease, as
the case may be, and to operate its respective properties and to carry on its
respective businesses as now or proposed to be conducted as set forth in the
Final Memorandum ("PERMITS"), except where the failure to obtain such Permits
would not, individually or in the aggregate, have a Material Adverse Effect;
each of the Issuers has fulfilled and performed all of its obligations with
respect to such Permits and no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or results in
any other impairment of the rights of the holder of any such Permit except, in
each case as would not have a Material Adverse Effect.
(o) Since the date of the most recent financial statements
appearing in the Final Memorandum, except as described therein or contemplated
thereby, none of the Issuers has incurred any liabilities or obligations, direct
or contingent, or entered into or agreed to enter into any transactions or
contracts (written or oral) not in the ordinary course of business which
liabilities, obligations, transactions or contracts would, individually or in
the aggregate, be material to the business, condition (financial or otherwise),
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prospects or results of operations of the Issuers, taken as a whole.
(p) Each of the Issuers has filed all necessary federal, state and
foreign income and franchise tax returns, and has paid all taxes shown as due
thereon except where the failure to so file such returns would not, individually
or in the aggregate, have a Material Adverse Effect; and other than tax
deficiencies which any of the Issuers is contesting in good faith and for which
any of the Issuers has provided adequate reserves, there is no tax deficiency
that has been asserted against any of the Issuers that would have, individually
or in the aggregate, a Material Adverse Effect.
(q) The statistical and market-related data included in the Final
Memorandum are based on or derived from sources which the Issuers believe to be
reliable and accurate.
(r) None of the Issuers or any agent acting on their behalf has
taken or will take any action that might cause this Agreement or the sale of the
Securities to violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System, in each case as in effect, or as the same may hereafter
be in effect, on the Closing Date.
(s) Each of the Issuers has good and marketable title to all real
property and good title to all personal property described in the Final
Memorandum as being owned by it and good and marketable title to a leasehold
estate in the real and personal property described in the Final Memorandum as
being leased by it free and clear of all liens, charges, encumbrances or
restrictions, except as described in the Final Memorandum or to the extent the
failure to have such title or the existence of such liens, charges, encumbrances
or restrictions would not, individually or in the aggregate, have a Material
Adverse Effect. All leases, contracts and agreements to which any of the Issuers
is a party or by which any of them is bound are valid and enforceable against
such Issuer, and are in full force and effect with only such exceptions as would
not, individually or in the aggregate, have a Material Adverse Effect. The
Issuers own or possess adequate licenses or other rights to use all patents,
trademarks, service marks, trade names, copyrights and know-how necessary
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to conduct the businesses now or proposed to be operated by them as described in
the Final Memorandum, and none of Issuers has received any notice of
infringement of or conflict with (or knows of any such infringement of or
conflict with) asserted rights of others with respect to any patents,
trademarks, service marks, trade names, copyrights or know-how which, if such
assertion of infringement or conflict were sustained, would have a Material
Adverse Effect.
(t) There are no legal or governmental proceedings involving or
affecting the Issuers or any of their respective properties or assets which
would be required to be described in a prospectus pursuant to the Act that are
not described in the Final Memorandum, nor are there any material contracts or
other documents which would be required to be described in a prospectus pursuant
to the Act that are not described in the Final Memorandum.
(u) Except as described in the Final Memorandum, or as would not,
individually or in the aggregate, have a Material Adverse Effect (A) each of the
Issuers is in compliance with and not subject to liability under applicable
Environmental Laws (as defined below), (B) each of the Issuers has made all
filings and provided all notices required under any applicable Environmental
Law, and has and is in compliance with all Permits required under any applicable
Environmental Laws and each of them is in full force and effect, (C) there is no
civil, criminal or administrative action, suit, demand, claim, hearing, notice
of violation, investigation, proceeding, notice or demand letter or request for
information pending or, to the knowledge of the Issuers, threatened against any
of the Issuers under any Environmental Law, (D) no lien, charge, encumbrance or
restriction has been recorded under any Environmental Law with respect to any
assets, facility or property owned, operated, leased or controlled by any of the
Issuers, (E) none of the Issuers has received notice that it has been identified
as a potentially responsible party under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended ("CERCLA") or any
comparable state law, (F) no property or facility of any of the Issuers is (i)
listed or proposed for listing on the National Priorities List under CERCLA or
is (ii) listed in the Comprehensive Environmental Response, Compensation,
Liability Information System List
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promulgated pursuant to CERCLA, or on any comparable list maintained by any
state or local governmental authority.
For purposes of this Agreement, "Environmental Laws" means the common
law and all applicable federal, state and local laws or regulations, codes,
orders, decrees, judgments or injunctions issued, promulgated, approved or
entered thereunder, relating to pollution or protection of public or employee
health and safety or the environment, including, without limitation, laws
relating to (i) emissions, discharges, releases or threatened releases of
hazardous materials into the environment (including, without limitation, ambient
air, surface water, ground water, land surface or subsurface strata), (ii) the
manufacture, processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of hazardous materials, and (iii) underground
and above ground storage tanks and related piping, and emissions, discharges,
releases or threatened releases therefrom.
(v) There is no strike, labor dispute, slowdown or work stoppage
with the employees of any of the Issuers which is pending or, to the knowledge
of the Issuers, threatened, which would have a Material Adverse Effect.
(w) To the Issuers knowledge, each of the Issuers carries
insurance in such amounts and covering such risks as is adequate for the conduct
of its business and the value of its properties.
(x) None of the Issuers has any liability for any prohibited
transaction or accumulated funding deficiency or any complete or partial
withdrawal liability with respect to any pension, profit sharing or other plan
which is subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), to which any of the Issuers makes or since January 1, 1992
has made a contribution and in which any employee of any Issuers is or has been
a participant. With respect to such plans, each Issuer is in compliance in all
material respects with all applicable provisions of ERISA.
(y) Each of the Issuers (i) makes and keeps accurate books and
records and (ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with management's
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authorization, (B) transactions are recorded as necessary to permit preparation
of its financial statements and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is compared
with existing assets at reasonable intervals.
(z) None of the Issuers will be an "investment company" or
"promoter" or "principal underwriter" for an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended, and the rules and
regulations thereunder.
(aa) The Indenture conforms, and the Securities and the
Registration Rights Agreement will conform, in all material respects to the
descriptions thereof in the Final Memorandum.
(bb) No holder of securities of any of the Issuers will be entitled
to have such securities registered under the registration statement required to
be filed by the Issuers pursuant to the Registration Rights Agreement other than
as expressly permitted thereby.
(cc) Immediately after the consummation of the transactions
contemplated by this Agreement, the fair value and present fair saleable value
of the assets of the Company (on a consolidated basis) will exceed the sum of
its stated liabilities and identified contingent liabilities; the Company (on a
consolidated basis) is not, nor will it be, after giving effect to the
execution, delivery and performance of this Agreement, and the consummation of
the transactions contemplated hereby, (a) left with unreasonably small capital
with which to carry on its business as it is proposed to be conducted, (b)
unable to pay its debts (contingent or otherwise) as they mature or (c)
otherwise insolvent.
(dd) None of the Issuers or any of their respective Affiliates (as
defined in Rule 501(b) of Regulation D under the Act) has directly, or through
any agent, (i) sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any "security" (as defined in the Act) which is or
could be integrated with the sale of the Securities in a manner that would
require the registration under the Act of the
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Securities or (ii) engaged in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) in
connection with the offering of the Notes or in any manner involving a public
offering within the meaning of Section 4(2) of the Act. Assuming the accuracy of
the representations and warranties of the Initial Purchasers in Section 8
hereof, it is not necessary in connection with the offer, sale and delivery of
the Securities to the Initial Purchasers in the manner contemplated by this
Agreement to register any of the Securities under the Act or to qualify the
Indenture under the TIA.
(ee) No securities of any of the Issuers are of the same class
(within the meaning of Rule 144A under the Act) as the Securities and listed on
a national securities exchange registered under Section 6 of the Exchange Act,
or quoted in a U.S. automated inter-dealer quotation system.
(ff) None of the Issuers has taken, nor will any of them take,
directly or indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the price of
the Notes.
(gg) None of the Issuers, any of their respective Affiliates or any
person acting on its or their behalf (other than the Initial Purchasers) has
engaged in any directed selling efforts (as that term is defined in Regulation S
under the Act ("REGULATION S")) with respect to the Notes; the Issuers and their
respective Affiliates and any person acting on its or their behalf (other than
the Initial Purchasers) have complied with the offering restrictions requirement
of Regulation S.
Any certificate signed by any officer of any of the Issuers and
delivered to the Initial Purchasers or to counsel for the Initial Purchasers
shall be deemed a joint and several representation and warranty by each of the
Issuers to the Initial Purchasers as to the matters covered thereby.
3. PURCHASE, SALE AND DELIVERY OF THE SECURITIES. On the basis of
the representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Issuers agree to issue
and
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sell to the Initial Purchasers, and the Initial Purchasers, acting severally and
not jointly, agree to purchase the Securities in the respective amounts set
forth on SCHEDULE 1 hereto from the Issuers at 100.425% of the principal amount
of the Notes. One or more certificates in definitive form for the Securities
that the Initial Purchasers have agreed to purchase hereunder, and in such
denomination or denominations and registered in such name or names as the
Initial Purchasers request upon notice to the Company at least 36 hours prior to
the Closing Date, shall be delivered by or on behalf of the Issuers to the
Initial Purchasers, against payment by or on behalf of the Initial Purchasers of
the purchase price therefor by wire transfer (same day funds), to such account
or accounts as the Issuers shall specify prior to the Closing Date, or by such
means as the parties hereto shall agree prior to the Closing Date. Such delivery
of and payment for the Securities shall be made at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at 10:00 A.M., New York time, on
June 7, 2002, or at such other place, time or date as the Initial Purchasers, on
the one hand, and the Issuers, on the other hand, may agree upon, such time and
date of delivery against payment being herein referred to as the "CLOSING DATE."
The Issuers will make such certificate or certificates for the Securities
available for checking and packaging by the Initial Purchasers at the offices of
Deutsche Bank Securities Inc. in New York, New York, or at such other place as
Deutsche Bank Securities Inc. may designate, at least 24 hours prior to the
Closing Date.
4. OFFERING BY THE INITIAL PURCHASERS. The Initial Purchasers
propose to make an offering of the Securities at the prices and upon the terms
set forth in the Final Memorandum, as soon as practicable after this Agreement
is entered into and as in the judgment of the Initial Purchasers is advisable.
5. COVENANTS OF THE ISSUERS. Each of the Issuers covenants and
agrees with the Initial Purchasers that:
(a) The Issuers will not amend or supplement the Final Memorandum
or any amendment or supplement thereto of which the Initial Purchasers shall not
previously have been advised and furnished a copy for a reasonable period of
time
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prior to the proposed amendment or supplement and as to which the Initial
Purchasers shall not have given their consent which consent shall not be
unreasonably withheld. The Issuers will promptly, upon the reasonable request of
the Initial Purchasers or counsel for the Initial Purchasers, make any
reasonable amendments or supplements to the Preliminary Memorandum or the Final
Memorandum that may be necessary or advisable in connection with the resale of
the Securities by the Initial Purchasers.
(b) The Issuers will cooperate with the Initial Purchasers in
arranging for the qualification of the Notes for offering and sale under the
securities or "Blue Sky" laws of such jurisdictions as the Initial Purchasers
may designate and will continue such qualifications in effect for as long as may
be necessary to complete the resale of the Notes; PROVIDED, HOWEVER, that in
connection therewith, the Issuers shall not be required to qualify as a foreign
corporation or to execute a general consent to service of process in any
jurisdiction or subject itself to taxation in excess of a nominal dollar amount
in any such jurisdiction where it is not then so qualified or subject.
(c) If, at any time prior to the completion of the distribution by
the Initial Purchasers of the Securities or the Private Exchange Notes, any
event occurs or information becomes known as a result of which the Final
Memorandum as then amended or supplemented would include any untrue statement of
a material fact, or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if for any other reason it is necessary at any time to
amend or supplement the Final Memorandum to comply with applicable law, the
Issuers will promptly notify the Initial Purchasers thereof and will prepare, at
the expense of the Issuers, an amendment or supplement to the Final Memorandum
that corrects such statement or omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial
Purchasers and to counsel for the Initial Purchasers as many copies of the
Preliminary Memorandum and the Final Memorandum or any amendment or supplement
thereto as the Initial Purchasers may reasonably request.
-16-
(e) The Issuers will apply the net proceeds from the sale of the
Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of the Notes remain outstanding, the
Issuers will furnish to the Initial Purchasers copies of all reports and other
communications (financial or otherwise) furnished by the Issuers to the Trustee
or to the holders of the Notes and, as soon as available, copies of any reports
or financial statements furnished to or filed by any of the Issuers with the
Commission or any national securities exchange on which any class of securities
of either of the Issuers may be listed.
(g) Prior to the Closing Date, the Issuers will furnish to the
Initial Purchasers, as soon as they have been prepared, a copy of any unaudited
interim financial statements of the Issuers for any period subsequent to the
period covered by the most recent financial statements appearing in the Final
Memorandum.
(h) None of the Issuers or any of their Affiliates will sell,
offer for sale or solicit offers to buy or otherwise negotiate in respect of any
"security" (as defined in the Act) that could be integrated with the sale of
securities in a manner which would require the registration under the Act of the
Securities.
(i) None of the Issuers will engage in any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Act) in connection with the offering of the Notes or in any manner
involving a public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding, the
Issuers will make available at their expense, upon request, to any holder of
such Securities and any prospective purchasers thereof the information specified
in Rule 144A(d)(4) under the Act, unless the Issuers are then subject to Section
13 or 15(d) of the Exchange Act.
(k) The Issuers will use their best efforts to (i) permit the
Securities to be designated PORTAL securities in
-17-
accordance with the rules and regulations adopted by the NASD relating to
trading in the NASD's Portal Market (the "PORTAL MARKET") and (ii) permit the
Securities to be eligible for clearance and settlement through The Depository
Trust Company.
(l) In connection with Securities offered and sold in an off shore
transaction (as defined in Regulation S) the Issuers will not register any
transfer of such Securities not made in accordance with the provisions of
Regulation S and will not, except in accordance with the provisions of
Regulation S, if applicable, issue any such Securities in the form of definitive
securities.
6. EXPENSES. The Issuers, jointly and severally agree to pay all
costs and expenses incident to the performance of their obligations under this
Agreement, whether or not the transactions contemplated herein are consummated
or this Agreement is terminated pursuant to Section 11 hereof, including all
costs and expenses incident to (i) the printing, word processing or other
production of documents with respect to the transactions contemplated hereby,
including any costs of printing the Preliminary Memorandum and the Final
Memorandum and any amendment or supplement thereto, and any "Blue Sky"
memoranda, (ii) all arrangements relating to the delivery to the Initial
Purchasers of copies of the foregoing documents, (iii) the fees and
disbursements of the counsel, the accountants and any other experts or advisors
retained by the Issuers, (iv) preparation (including printing), issuance and
delivery to the Initial Purchasers of the Securities, (v) the qualification of
the Securities under state securities and "Blue Sky" laws, including filing fees
and fees and disbursements of counsel for the Initial Purchasers relating
thereto (which will not exceed $5,000), (vi) expenses of the Company in
connection with any meetings with prospective investors in the Securities,
including one-half of any airplane rental expenses, (vii) fees and expenses of
the Trustee including fees and expenses of counsel, (viii) all expenses and
listing fees incurred in connection with the application for quotation of the
Securities on the PORTAL Market and (ix) any fees charged by investment rating
agencies for the rating of the Securities. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Initial Purchasers set forth in Section 7 hereof is not satisfied,
because this Agreement is terminated or because of any failure, refusal or
inability on the part of the Issuers to perform all obligations and satisfy all
conditions on their part to be
-18-
performed or satisfied hereunder (other than solely by reason of a default by
the Initial Purchasers of their obligations hereunder after all conditions
hereunder have been satisfied in accordance herewith), the Issuers agree to
promptly reimburse the Initial Purchasers upon demand for all out-of-pocket
expenses (including fees, disbursements and charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
counsel for the Initial Purchasers) that shall have been incurred by the Initial
Purchasers in connection with the proposed purchase and sale of the Securities.
7. CONDITIONS OF THE INITIAL PURCHASERS' OBLIGATIONS. The
obligation of the Initial Purchasers to purchase and pay for the Securities
shall, in their sole discretion, be subject to the satisfaction or waiver of the
following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have
received the opinion, dated as of the Closing Date and addressed to the Initial
Purchasers, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel for the Issuers, in form and
substance satisfactory to counsel for the Initial Purchasers, as set forth in
Exhibit B hereto.
(b) On the Closing Date, the Initial Purchasers shall have
received the opinion, in form and substance satisfactory to the Initial
Purchasers, dated as of the Closing Date and addressed to the Initial
Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial Purchasers, with
respect to certain legal matters relating to this Agreement and such other
related matters as the Initial Purchasers may reasonably require. In rendering
such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have received and may rely upon such
certificates and other documents and information as it may reasonably request to
pass upon such matters.
(c) The Initial Purchasers shall have received from Deloitte &
Touche LLP a comfort letter or letters dated the date hereof and the Closing
Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(d) The Initial Purchasers shall have received from Ernst & Young
LLP a comfort letter or letters dated the date
-19-
hereof and the Closing Date, in form and substance satisfactory to counsel for
the Initial Purchasers.
(e) The representations and warranties of the Issuers contained in
this Agreement shall be true and correct on and as of the date hereof and on and
as of the Closing Date as if made on and as of the Closing Date; the statements
of each Issuers' officers made pursuant to any certificate delivered in
accordance with the provisions hereof shall be true and correct on and as of the
Closing Date; the Issuers shall have performed all covenants and agreements and
satisfied all conditions on their part to be performed or satisfied hereunder at
or prior to the Closing Date; and, except as described in the Final Memorandum
(exclusive of any amendment or supplement thereto after the date hereof),
subsequent to the date of the most recent financial statements in such Final
Memorandum, there shall have been no event or development, and no information
shall have become known, that, individually or in the aggregate, has or would be
reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined
(temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the most recent financial statements
in the Final Memorandum (exclusive of any amendment or supplement thereto after
the date hereof), none of the Issuers shall have sustained any loss or
interference with respect to its business or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any strike, labor dispute, slow down or work stoppage or from any legal or
governmental proceeding, order or decree, which loss or interference,
individually or in the aggregate, has or would be reasonably likely to have a
Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of
each of the Issuers, dated the Closing Date, signed on behalf of each such
Issuer by its Chief Executive Officer, President or any Senior Vice President
and the Chief Financial Officer or Treasurer, to the effect that:
-20-
(i) The representations and warranties of such Issuer contained in
this Agreement are true and correct as if made on and as of the Closing
Date, and such Issuer has performed in all material respects all covenants
and agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or since the date
of the most recent financial statements in the Final Memorandum (exclusive
of any amendment or supplement thereto after the date hereof), no event or
development has occurred, and no information has become known, that,
individually or in the aggregate, has or would be reasonably likely to have
a Material Adverse Effect; and
(iii) The sale of the Securities hereunder has not been enjoined
(temporarily or permanently).
(i) On the Closing Date, the Initial Purchasers shall have
received the Registration Rights Agreement executed by the Issuers and such
agreement shall be in full force and effect at all times from and after the
Closing Date.
(j) The Initial Purchasers shall have received on or before the
Closing Date from the Company a true and correct copy of an amendment to the
Credit Facility (as defined in the Final Memorandum) (the "Amendment"), which
Amendment shall have been executed by all necessary parties thereto and shall be
in full force and effect, and there shall have been no material amendments,
alterations, modifications or waivers of any of the provisions of the Amendment
as described in the Final Memorandum.
On or before the Closing Date, the Initial Purchasers and counsel for
the Initial Purchasers shall have received such further documents, opinions,
certificates, letters and schedules or instruments relating to the business,
corporate, legal and financial affairs of Holdings and the Subsidiaries as they
shall have heretofore reasonably requested from the Issuers.
-21-
All such documents, opinions, certificates, letters, schedules or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are reasonably satisfactory in all material respects to the
Initial Purchasers and counsel for the Initial Purchasers. The Issuers shall
furnish to the Initial Purchasers such conformed copies of such documents,
opinions, certificates, letters, schedules and instruments in such quantities as
the Initial Purchasers shall reasonably request.
8. OFFERING OF SECURITIES; RESTRICTIONS ON TRANSFER. (a) Each
Initial Purchaser, severally and not jointly, represents and warrants that it is
a QIB. Each of the Initial Purchasers agrees with the Issuers (as to itself
only) that (i) it has not and will not solicit offers for, or offer or sell, the
Securities by any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Act; and (ii) it has
and will solicit offers for the Securities only from, and will offer the
Securities only to (A) in the case of offers inside the United States, persons
whom the Initial Purchasers reasonably believe to be QIBs or, if any such person
is buying for one or more institutional accounts for which such person is acting
as fiduciary or agent, only when such person has represented to the Initial
Purchasers that each such account is a QIB, to whom notice has been given that
such sale or delivery is being made in reliance on Rule 144A, and, in each case,
in transactions under Rule 144A and (B) in the case of offers outside the United
States, to persons other than U.S. persons ("non-U.S. purchasers," which term
shall include dealers or other professional fiduciaries in the United States
acting on a discretionary basis for non-U.S. beneficial owners (other than an
estate or trust)); PROVIDED, HOWEVER, that, in the case of this clause (B), in
purchasing such Securities such persons are deemed to have represented and
agreed as provided under the caption "Notice to Investors" contained in the
Final Memorandum (or, if the Final Memorandum is not in existence, in the most
recent Memorandum).
(b) Each of the Initial Purchasers represents and warrants (as to
itself only) with respect to offers and sales outside the United States that (i)
it has and will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Securities or has
-22-
in its possession or distributes any Memorandum or any such other material, in
all cases at its own expense; (ii) the Securities have not been and will not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except in accordance with Regulation S under the Act or
pursuant to an exemption from the registration requirements of the Act; (iii) it
has offered the Securities and will offer and sell the Securities (A) as part of
its distribution at any time and (B) otherwise until 40 days after the later of
the commencement of the offering and the Closing Date, only in accordance with
Rule 903 of Regulation S and, accordingly, neither it nor any persons acting on
its behalf have engaged or will engage in any directed selling efforts (within
the meaning of Regulation S) with respect to the Securities, and any such
persons have complied and will comply with the offering restrictions requirement
of Regulation S; and (iv) they agree that, at or prior to confirmation of sales
of the Securities, they will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases
Securities from them during the restricted period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under the
United States Securities Act of 1933 (the "Securities Act") and may not be
offered and sold within the United States or to, or for the account or benefit
of, U.S. persons (i) as part of the distribution of the Securities at any time
or (ii) otherwise until 40 days after the later of the commencement of the
offering and the closing date of the offering, except in either case in
accordance with Regulation S (or Rule 144A if available) under the Securities
Act. Terms used above have the meaning given to them in Regulation S."
Terms used in this Section 8 and not defined in this Agreement have
the meanings given to them in Regulation S.
9. INDEMNIFICATION AND CONTRIBUTION. (a) The Issuers, jointly and
severally, agree to indemnify and hold harmless the Initial Purchasers, and each
person, if any, who controls the Initial Purchasers within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, against any losses,
claims, damages or liabilities to which the Initial Purchasers or such
controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as any such
-23-
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in any Memorandum or any amendment or supplement
thereto; or
(ii) the omission or alleged omission to state, in any Memorandum
or any amendment or supplement thereto, a material fact required to be
stated therein or necessary to make the statements therein not misleading,
and will reimburse, as incurred, the Initial Purchasers and each such
controlling person for any legal or other expenses incurred by the Initial
Purchasers or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, the Issuers
will not be liable in any such case to the extent that any such loss, claim,
damage, or liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in any Memorandum
or any amendment or supplement thereto in reliance upon and in conformity with
written information concerning any Initial Purchasers furnished to the Issuers
by such Initial Purchasers specifically for use therein. The indemnity provided
for in this Section 9 will be in addition to any liability that the Issuers may
otherwise have to the indemnified parties. The Issuers shall not be liable under
this Section 9 for any settlement of any claim or action effected without its
prior written consent, which shall not be unreasonably withheld; PROVIDED
FURTHER, that with respect to any such untrue statement or omission made in the
Preliminary Memorandum, the indemnity contained in this Section 9(a) (to the
extent and only to the extent that such losses, claims, damages or liabilities
resulted from the untrue statement or omission described in (B) below) shall not
inure to the benefit of an Initial Purchaser if it shall be established that
both (A) a copy of the amended or supplemented Memorandum was not sent or given
by such Initial Purchaser to the person asserting any such losses, claims,
damages or liabilities at or prior to the delivery of the Notes to such person,
and (B) the untrue statement or omission in the Preliminary Memorandum was
corrected
-24-
in the amended or supplemented Memorandum unless, in either case, such failure
to deliver the amended or supplemented Memorandum was a result of noncompliance
by the Company with Section 5(c).
(b) Each Initial Purchaser, severally and not jointly, agrees to
indemnify and hold harmless each of the Issuers, its directors, its officers and
each person, if any, who controls such Issuer within the meaning of Section 15
of the Act or Section 20 of the Exchange Act against any losses, claims, damages
or liabilities to which such Issuer or any such director, officer or controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any Memorandum or any amendment or
supplement thereto, or (ii) the omission or the alleged omission to state
therein a material fact required to be stated in any Memorandum or any amendment
or supplement thereto, or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information concerning such
Initial Purchaser, furnished to the Issuers by such Initial Purchaser
specifically for use therein; and subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal or
other expenses incurred by each such Issuer or any such director, officer or
controlling person in connection with investigating or defending against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action in respect thereof. The indemnity provided for in
this Section 9 will be in addition to any liability that the Initial Purchasers
may otherwise have to the indemnified parties. The Initial Purchasers shall not
be liable under this Section 9 for any settlement of any claim or action
effected without their consent, which shall not be unreasonably withheld. The
Issuers shall not, without the prior written consent of the Initial Purchasers,
effect any settlement or compromise of any pending or threatened proceeding in
respect of which the Initial Purchasers are or could have been a party, or
indemnity could have been sought hereunder by the Initial Purchasers, unless
-25-
such settlement (A) includes an unconditional written release of the Initial
Purchasers, in form and substance reasonably satisfactory to the Initial
Purchasers, from all liability on claims that are the subject matter of such
proceeding and (B) does not include any statement as to an admission of fault,
culpability or failure to act by or on behalf of the Initial Purchasers.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 9, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9, notify the indemnifying party of the commencement
thereof in writing; but the omission to so notify the indemnifying party (i)
will not relieve it from any liability under paragraph (a) or (b) above unless
and to the extent such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraphs (a) and (b)
above. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; PROVIDED, HOWEVER, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right
-26-
to direct the defense of such action on behalf of such indemnified party or
parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 9 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by Deutsche Bank Securities Inc. on
behalf of the Initial Purchasers in the case of paragraph (a) of this Section 9
or Holdings on behalf of the Issuers in the case of paragraph (b) of this
Section 9, representing the indemnified parties under such paragraph (a) or
paragraph (b), as the case may be, who are parties to such action or actions) or
(ii) the indemnifying party has authorized in writing the employment of counsel
for the indemnified party at the expense of the indemnifying party. After such
notice from the indemnifying party to such indemnified party, the indemnifying
party will not be liable for the costs and expenses of any settlement of such
action effected by such indemnified party without the prior written consent of
the indemnifying party (which consent shall not be unreasonably withheld),
unless such indemnified party waived in writing its rights under this Section 9,
in which case the indemnified party may effect such a settlement without such
consent.
(d) In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 9 is unavailable to, or insufficient
to hold harmless, an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof), each indemnifying
-27-
party, in order to provide for just and equitable contribution, shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect (i) the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party on
the other from the offering of the Notes or (ii) if the allocation provided by
the foregoing clause (i) is not permitted by applicable law, not only such
relative benefits but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof). The relative benefits received by the Issuers on the one hand and the
Initial Purchasers on the other shall be deemed to be in the same proportion as
the total proceeds from the offering of the Notes (before deducting expenses)
received by the Issuers bear to the total discounts and commissions received by
the Initial Purchasers. The relative fault of the parties 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 Issuers on the one hand, or the Initial
Purchasers on the other, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission or
alleged statement or omission, and any other equitable considerations
appropriate in the circumstances. The Issuers and the Initial Purchasers agree
that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to in the first sentence of this paragraph (d). Notwithstanding any other
provision of this paragraph (d), the Initial Purchasers shall not be obligated
to make contributions hereunder that in the aggregate exceed the total
discounts, commissions and other compensation received by the Initial Purchasers
under this Agreement, less the aggregate amount of any damages that the Initial
Purchasers has otherwise been required to pay by reason of the untrue or alleged
untrue statements or the omissions or alleged omissions to state a material
fact, and no person guilty of fraudulent misrepresentation (within the meaning
of Sec-
-28-
tion 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
paragraph (d), each person, if any, who controls the Initial Purchasers within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Initial Purchasers, and each
director of either of the Issuers, each officer of either of the Issuers and
each person, if any, who controls either of the Issuers within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, shall have the same
rights to contribution as the Issuers.
10. SURVIVAL CLAUSE. The respective representations, warranties,
agreements, covenants, indemnities and other statements of each of the Issuers,
its officers and the Initial Purchasers set forth in this Agreement or made by
or on behalf of them pursuant to this Agreement shall remain in full force and
effect, regardless of (i) any investigation made by or on behalf of either of
the Issuers, any of their officers or directors, the Initial Purchasers or any
controlling person referred to in Section 9 hereof and (ii) delivery of and
payment for the Notes. The respective agreements, covenants, indemnities and
other statements set forth in Sections 6, 9, 10 and 15 hereof shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement.
11. TERMINATION. (a) This Agreement may be terminated in the sole
discretion of the Initial Purchasers by notice to the Issuers given prior to the
Closing Date in the event that the Issuers shall have failed, refused or been
unable to perform in all material respects all obligations and satisfy all
conditions on its part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Closing Date:
(i) any of the Issuers shall have sustained any loss or
interference with respect to its businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance,
or from any strike, labor dispute, slow down or work stoppage or any legal
or governmental proceeding, which loss or interference, in the sole
judgment of the Initial Purchasers, has had or has a Material Adverse
Effect, or there
-29-
shall have been, in the sole judgment of the Initial Purchasers, any event
or development that, individually or in the aggregate, has or could be
reasonably likely to have a Material Adverse Effect (including without
limitation a change in control of the Issuers), except in each case as
described in the Final Memorandum (exclusive of any amendment or supplement
thereto);
(ii) trading in securities of the Issuers or in securities
generally on the New York Stock Exchange, American Stock Exchange or the
NASDAQ National Market shall have been suspended or materially limited or
minimum or maximum prices shall have been established on any such exchange
or market;
(iii) a banking moratorium shall have been declared by New York or
United States authorities or a disruption in securities settlement or
clearance services in the United States that would prevent the consummation
of the transactions contemplated hereby on the Closing Date;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, or (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or any other national or international calamity
or emergency, or (C) any material change in the financial markets of the
United States which, in the case of (A), (B) or (C) above and in the sole
judgment of the Initial Purchasers, makes it impracticable or inadvisable
to proceed with the offering or the delivery of the Notes as contemplated
by the Final Memorandum; or
(v) any securities of the Issuers shall have been downgraded or
placed on any "watch list" for possible downgrading by any nationally
recognized statistical rating organization.
(b) Termination of this Agreement pursuant to this Section 11
shall be without liability of any party to any other party except as provided in
Section 10 hereof.
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12. INFORMATION SUPPLIED BY THE INITIAL PURCHASERS. The statements
set forth in the third paragraph, second and fourth through eighth sentences of
the sixth paragraph and the third and fourth sentences of the seventh paragraph
under the heading "Private Placement" in the Final Memorandum (to the extent
such statements relate to the Initial Purchasers) constitute the only
information furnished by the Initial Purchasers to the Issuer for the purposes
of Sections 2(a) and 9 hereof.
13. NOTICES. All communications hereunder shall be in writing and,
if sent to the Initial Purchasers, shall be mailed or delivered to (i) c/o
Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Finance Department; if sent to the Issuers, shall be mailed
or delivered to the Issuers at TransDigm Inc., 26380 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer; with
a copy to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; and one business day
after being timely delivered to a next-day air courier.
14. SUCCESSORS. This Agreement shall inure to the benefit of and
be binding upon the Initial Purchasers, the Issuers and their respective
successors and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained; this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Issuers contained in Section 9 of this Agreement shall
also be for the benefit of any person or persons who control the Initial
Purchasers within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act and (ii) the indemnities of the Initial Purchasers contained in
Section 9 of this Agreement
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shall also be for the benefit of the directors of either of the Issuers, their
officers and any person or persons who control either of the Issuers within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act. No purchaser
of Notes from the Initial Purchasers will be deemed a successor because of such
purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
16. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Issuers
and the Initial Purchasers.
Very truly yours,
WITNESS the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first written above.
TRANSDIGM INC.,
as Issuer
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President, Chief
Financial Officer &
Assistant Secretary.
TRANSDIGM HOLDING COMPANY,
as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President, Chief
Financial Officer &
Assistant Secretary.
MARATHON POWER TECHNOLOGIES
COMPANY,
as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Treasurer and Assistant Secretary
ZMP, INC.,
as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Treasurer and Assistant Secretary
▇▇▇▇▇ RITE AEROSPACE, INC.,
as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Treasurer and Assistant Secretary
CHAMPION AEROSPACE INC.,
as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Treasurer and Assistant Secretary
CHRISTIE ELECTRIC CORP.,
as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Treasurer and Assistant Secretary
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
DEUTSCHE BANK SECURITIES INC.,
as Initial Purchaser
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
CREDIT SUISSE FIRST BOSTON CORPORATION,
as Initial Purchaser
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
SCHEDULE I
Principal Amount of
Senior Subordinated
Notes
-------------------
DEUTSCHE BANK SECURITIES INC.............................. $ 45,00,000
CREDIT SUISSE FIRST BOSTON CORPORATION.................... 30,000,000
-------------
Total $ 75,000,000
SCHEDULE II
▇▇▇▇▇ Rite Aerospace, Inc.
Champion Aerospace Inc.
Christie Electric Corp.
Marathon Power Technologies Company
Marathon Power Technologies Limited
TransDigm Export, Inc.
ZMP, Inc.
EXHIBIT A
[Registration Rights Agreement]
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