EXHIBIT 10.62
HEXCEL CORPORATION
9.875% SENIOR SECURED NOTES DUE 2008
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PURCHASE AGREEMENT
March 7, 2003
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
Fleet Securities, Inc.
As representatives of the several Purchasers
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Hexcel Corporation, a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Purchasers (the "Purchasers") an aggregate of $125,000,000 principal amount of
the Senior Secured Notes specified above (the "Securities") The Securities will
be unconditionally guaranteed as to the payment of principal, premium, if any,
and interest (the "Guarantees") by ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Holding Corp., a Delaware
corporation, ▇▇▇▇▇-▇▇▇▇▇▇▇▇ Corporation, a Delaware corporation and Hexcel
Pottsville Corporation, a Delaware corporation (each a "Guarantor" and,
collectively, the "Guarantors"). Capitalized terms not defined herein shall have
the meanings assigned to them in the Offering Circular (as defined below).
1. Each of the Company and the Guarantors, jointly and severally,
represents and warrants to, and agrees with, each of the Purchasers that:
(a) A preliminary offering circular, dated February 28, 2003 (the
"Preliminary Offering Circular") and an offering circular, dated March 7,
2003 (the "Offering Circular"), have been prepared in connection with the
offering of the Securities. Any reference to the Preliminary Offering
Circular or the Offering Circular, as the case may be, as amended or
supplemented, as of any specified date, shall be deemed to include (i) any
documents filed with the Commission pursuant to Section 13(a), 13(c) or
15(d) of the Exchange Act after the date of the Preliminary Offering
Circular or the Offering Circular, as the case may be, and prior to such
specified date and (ii) any Additional Issuer Information (as defined in
Section 5(g)) furnished by the Company prior to the completion of the
distribution of the Securities; and all documents filed under the United
States Securities Exchange Act of 1934, as amended (the "Exchange Act") and
so deemed to be included in the Preliminary Offering Circular or the
supplement thereto are hereinafter called the "Exchange Act Reports". The
Exchange Act Reports, when they were or are filed with the Commission,
conformed or will conform in all material respects to the applicable
requirements of the Exchange Act and the applicable rules and regulations
of the Commission thereunder. The Preliminary Offering Circular or the
Offering Circular and any amendments or Offering Circular, as the case may
be, or any amendment or
supplements thereto and the Exchange Act Reports did not and will not, as
of their respective dates, contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by a
Purchaser through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein;
(b) Neither the Company nor any of its significant subsidiaries
within the meaning of Rule 1-02(w) of regulation S-X under the Securities
Act (each individually, a "Subsidiary" and collectively, the
"Subsidiaries") has sustained since the date of the latest audited
financial statements included in the Offering Circular any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Offering Circular; and, since the respective dates
as of which information is given in the Offering Circular, there has not
been any material change in the capital stock or long-term debt of the
Company or any of its Subsidiaries or any material adverse change or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company or its
Subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Offering Circular;
(c) The Company and its Subsidiaries have good and marketable
title in fee simple to all real property owned by them and good and
marketable title to all personal property owned by them, in each case free
and clear of all liens, encumbrances and defects except in each case, (i)
as are described in the Offering Circular, (ii) such liens and encumbrances
created by or under the New Senior Credit Facility (as defined in the
Offering Circular), or (iii) where such liens, encumbrances and defects
would not have a material adverse effect on management, the condition
(financial or other), business, properties or results of operations of the
Company and its Subsidiaries, taken as a whole (a "Material Adverse
Effect"); and any real property and buildings held under lease by the
Company and its Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as do not interfere with the use
made and proposed to be made of such property and buildings by the Company
and its Subsidiaries except as (i) disclosed in the Offering Circular or
(ii) such as do not have a Material Adverse Effect;
(d) The Company and its Subsidiaries have each been duly
incorporated or formed, as the case may be, and are validly existing as a
corporation, limited liability company or limited partnership, as the case
may be, in good standing under the laws of its respective jurisdiction of
incorporation or organization, as the case may be, with power and authority
(corporate and other) to own their properties and conduct their business as
described in the Offering Circular, and have been duly qualified as a
foreign corporation, limited liability company or limited partnership, as
the case may be, for the transaction of business and are in good standing
under the laws of each other jurisdiction in which they own or lease
properties or conduct any business so as to require such qualification,
except where the failure to be so qualified would not have a Material
Adverse Effect;
(e) The Company has an authorized capitalization as set forth in
the Offering Circular, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid
and non-assessable; and all of the issued shares of
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capital stock of each Subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and (except for
directors' qualifying shares and except as otherwise set forth in the
Offering Circular) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims (except pursuant
to any joint venture agreements);
(f) The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement and the indenture dated as of
March 19, 2003 (the "Indenture") among the Company, the Guarantors and the
Trustee, will have been duly executed, authenticated, issued and delivered
and will constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms and entitled to the benefits
provided by the Indenture under which they are to be issued (assuming
authentication by the Trustee in accordance with the provisions of the
Indenture); the Indenture has been duly authorized and the Indenture
constitutes a valid and legally binding instrument of the Company and the
Guarantors, enforceable in accordance with its terms (assuming due
authorization, execution and delivery by the Trustee in accordance with the
provisions of the Indenture), subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and the
Securities and the Indenture will be in substantially the form previously
delivered to you;
(g) The Guarantees have been duly authorized by the Guarantors,
and when executed and delivered pursuant to this Agreement and the
Indenture, will constitute valid and legally binding obligations of the
Guarantors entitled to the benefits provided by the Indenture, enforceable
in accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity principles;
(h) The exchange and registration rights agreement to be dated
March 19, 2003, among the Company, the Guarantors and the Purchasers (the
"Registration Rights Agreement") has been duly authorized by the Company
and the Guarantors, and when executed and delivered by the Company and the
Guarantors, will constitute the valid and legally binding obligation of the
Company and the Guarantors, enforceable against the Company and the
Guarantors in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles. Pursuant to the Registration Rights Agreement, the
Company and the Guarantors will agree to file with the United States
Securities and Exchange Commission (the "Commission"), under the
circumstances set forth therein, (i) a registration statement under the
Securities Act relating to another series of debt securities of the Company
with terms substantially identical to the Securities (the "Exchange
Securities") to be offered in exchange for the Securities (the "Exchange
Offer"), and (ii) to the extent required by the Registration Rights
Agreement, a shelf registration statement pursuant to Rule 415 of the
Securities Act relating to the resale by certain holders of the Securities,
and in each case, to use all commercially reasonable efforts to cause such
registration statements to be declared effective;
(i) The Exchange Securities have been duly authorized for
issuance by the Company, and when issued and authenticated in accordance
with the terms of the Indenture (assuming authentication by the Trustee in
accordance with the provisions of the Indenture) will be the valid and
legally binding obligations of the Company, entitled to the benefits
provided by the Indenture, enforceable in accordance with their terms,
subject, as to enforcement, to
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bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(j) The guarantees of the Company's obligations under the
Exchange Securities (the "Exchange Guarantees") to be offered in exchange
for the Guarantees in the Exchange Offer have been duly authorized by the
Guarantors, and when executed, authenticated, issued and delivered pursuant
to this Agreement and the Indenture; will constitute valid and legally
binding obligations of the Guarantors, entitled to the benefits provided by
the Indenture, enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
(k) The Security Documents have each been duly authorized by the
Company and the Guarantors (assuming the due authorization and execution by
the other parties thereto) and when executed and delivered by the Company
and the Guarantors, will constitute the valid and legally binding
obligation of the Company and the Guarantors, enforceable against the
Company and the Guarantors in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
(l) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale of
the Securities) will violate or result in a violation of Section 7 of the
Exchange Act, or any regulation promulgated thereunder, including, without
limitation, Regulations T, U, and X of the Board of Governors of the
Federal Reserve System;
(m) Prior to the date hereof, neither the Company, the Guarantors
nor any of their affiliates have taken any action which is designed to or
which has constituted or which might have been expected to cause or result
in stabilization or manipulation of the price of any security of the
Company or any Guarantor in connection with the offering of the Securities
and the Guarantees;
(n) The issue and sale of the Securities and the Guarantees and
the compliance by the Company and the Guarantors with all of the provisions
of the Securities, the Guarantees, the Indenture, the Registration Rights
Agreement, the Security Documents and this Agreement and the consummation
of Financing Transactions and the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
(i) any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which the Company or any of its Subsidiaries is bound or to which any of
the property or assets of the Company or any of its Subsidiaries is
subject, (ii) any of the provisions of the Certificate of Incorporation,
Certificate of Formation, Partnership Agreement or By-laws or other
organizational documents, as applicable, of the Company or any of its
Subsidiaries or (iii) any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company
or any of its Subsidiaries or any of their properties, except, in the case
of clauses (i) and (iii) above, for breaches or violations that would not
have a Material Adverse Effect; nor will such action result in the
imposition of a Lien on any assets of the Company or any of its
Subsidiaries (except pursuant to the Security Documents or the New Senior
Credit Facility) or result in the acceleration of any indebtedness of the
Company or any of its Subsidiaries; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is
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required for the issue and sale of the Securities and the Guarantees or the
consummation by the Company and the Guarantors of the Financing
Transactions or the transactions contemplated by this Agreement, the
Registration Rights Agreement, the Security Documents or the Indenture,
except (i) those that have been obtained or made, (ii) for the filing of a
registration statement by the Company with the Commission pursuant to the
United States Securities Act of 1933, as amended (the "Act") pursuant to
Section 5(j) hereof (iii) such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the
Securities by the Purchasers, (iv) such Exchange Act Reports as may be
required to be filed after the consummation of the offering pursuant to the
Company's periodic reporting requirements under Sections 13 and 15(d) of
the Exchange Act and (v) consent of Brazilian regulatory agencies to the
Financing Transactions. After consummation of the offering, the Financing
Transactions and the transactions contemplated by the Securities, the
Guarantees, the Indenture, the Security Documents and the Registration
Rights Agreement, no Default or Event of Default will exist;
(o) Neither the Company nor any of its Subsidiaries is (i) in
violation of its Certificate of Incorporation, Certificate of Formation,
Partnership Agreement or By-laws or (ii) in default in the performance or
observance of any material obligation, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound, except, in the case of clause (ii) above, for
defaults that would not have a Material Adverse Effect;
(p) The statements set forth in the Offering Circular under the
caption "Description of Notes," insofar as they purport to constitute a
summary of the terms of the Securities, the Guarantees and the Security
Documents, under the captions "Certain United States Federal Tax
Consequences," "Description of Material Debt," "Equity Transactions," and
under the caption "Plan of Distribution," insofar as they purport to
describe the provisions of the laws documents referred to therein, are
accurate, complete and fair in all material respects;
(q) Other than as set forth in the Offering Circular, there are
no legal or governmental proceedings pending to which the Company or any of
its Subsidiaries is a party or of which any property of the Company or any
of its Subsidiaries is the subject which, if determined adversely to the
Company or any of its Subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future financial position,
stockholders' equity or results of operations of the Company and its
Subsidiaries; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(r) When the Securities and the Guarantees are issued and
delivered pursuant to this Agreement, neither the Securities nor the
Guarantees will be of the same class (within the meaning of Rule 144A under
the Securities Act) as securities which are 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;
(s) The Company is subject to Section 13 or 15(d) of the Exchange
Act;
(t) Neither the Company nor any of its Subsidiaries is or, after
giving effect to the offering and sale of the Securities, will be an
"investment company," as such term is defined in the United States
Investment Company Act of 1940, as amended (the "Investment Company Act");
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(u) Neither the Company, the Guarantors nor any person acting on
their behalf has offered or sold the Securities by means of any general
solicitation or general advertising within the meaning of Rule 502(c) under
the Act or, with respect to Securities sold outside the United States to
non-U.S. persons (as defined in Rule 902 under the Act), by means of any
directed selling efforts within the meaning of Rule 902 under the
Securities Act and the Company, any affiliate of the Company and any person
acting on its or their behalf has complied with and will implement the
"offering restriction" within the meaning of such Rule 902;
(v) Within the preceding six months, none of the Company, the
Guarantors or any other person acting on behalf of the Company or any
Guarantor has offered or sold to any person any Securities or Guarantees,
or any securities of the same or a similar class as the Securities or
Guarantees, other than Securities or Guarantees offered or sold to the
Purchasers hereunder. The Company and the Guarantors will take reasonable
precautions designed to insure that any offer or sale, direct or indirect,
in the United States or to any U.S. person (as defined in Rule 902 under
the Act) of any Securities or Guarantees or any substantially similar
security issued by the Company, within six months subsequent to the date on
which the distribution of the Securities or the Guarantees has been
completed (as notified to the Company by ▇▇▇▇▇▇▇, Sachs & Co.), is made
under restrictions and other circumstances reasonably designed not to
affect the status of the offer and sale of the Securities and the
Guarantees in the United States and to U.S. persons contemplated by this
Agreement as transactions exempt from the registration provisions of the
Securities Act;
(w) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and its Subsidiaries, are independent
public accountants as required by the Act and the rules and regulations of
the Commission thereunder;
(x) Except as will be described in the Offering Circular,
(i) neither the Company nor any of its Subsidiaries is in violation of any
Federal, state, local or foreign statute, law, rule, regulation, ordinance,
code, published policy or rule of common law or any published judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health or the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) including, without limitation, laws and regulations
relating to the release or threatened release of chemicals, pollutants,
contaminants, non-sanitary wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or to
the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), which violation would individually or in the
aggregate have a Material Adverse Effect (ii) the Company and its
Subsidiaries have all material permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
substantial compliance with their requirements, except where the failure to
have such permit, authorization or approval would not individually or in
the aggregate have a Material Adverse Effect, (iii) to the Company's
knowledge there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating to any
Environmental Laws against the Company or any of its Subsidiaries that
would individually or in the aggregate have a Material Adverse Effect and
(iv) there are no events or circumstances that might reasonably be expected
to form the basis of an order for clean-up or remediation, or an action,
suit or proceeding by any private party or governmental body or agency
against or affecting the Company or any of its
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Subsidiaries relating to Hazardous Materials or Environmental Laws that
would individually or in the aggregate have a Material Adverse Effect;
(y) The Company and its Subsidiaries own, possess, are validly
licensed under, or can acquire on reasonable terms, adequate patents,
patent rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business as currently
conducted except where the failure to own, possess or be licensed under
would individually or in the aggregate have a Material Adverse Effect, and,
except where individually or in the aggregate infringement, conflict,
invalidity or uneforceabaility would not have a Material Adverse Effect,
neither the Company nor any of its Subsidiaries has received any notice or
otherwise has knowledge of (i) any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property owned
by the Company or its Subsidiaries or (ii) any facts or circumstances which
would render any Intellectual Property owned by Company invalid or
unenforceable;
(z) The Company maintains title insurance for its domestic owned
real property which is customary in coverage and amount;
(aa) The assumptions used in preparing the pro forma financial
information included in the Offering Circular provide a reasonable basis
for presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma adjustments
give appropriate effect to those assumptions, and the pro forma columns
therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts. The pro forma
financial information included in the Offering Circular, has been properly
compiled, and prepared in accordance with the applicable requirements of
the Act and the rules and regulations of the Commission thereunder and
includes all adjustments necessary to present fairly the pro forma
financial position of the respective entity or entities presented therein
at the respective dates indicated and the results of their operations for
the respective periods specified;
(bb) The historical financial statements, including the notes
thereto, and supporting schedules included in the Offering Circular present
fairly the financial position of the Company and its consolidated
subsidiaries and the other entities for which financial statements are
included in the Offering Circular as of the dates indicated and condition
and results of operations for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved; and the supporting schedules included in the Offering Circular
present fairly the information required to be stated therein. The other
financial and statistical information and data included in the Offering
Circular present fairly the information included therein and have been
prepared on a basis consistent with that of the financial statements
included in the Offering Circular and the books and records of the
respective entities presented therein;
(cc) The Company and each of its subsidiaries have accurately
prepared and timely filed all Federal, state and other tax returns that are
required to be filed by it and has paid or made provision for the payment
of all taxes, assessments, governmental or other similar charges, including
without limitation, all sales and use taxes and all taxes which the Company
and each of its subsidiaries is obligated to withhold from amounts owing to
employees, creditors and third parties, with respect to the periods covered
by such tax returns (whether or
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not such amounts are shown as due on any tax return) except where failure
to prepare, file, pay or make provision for would not, individually or in
the aggregate, have a Material Adverse Effect. No deficiency assessment
with respect to a proposed adjustment of the Company's or any of its
subsidiaries' Federal, state, or other taxes is pending or, to the best of
the Company's knowledge, threatened, except where such deficiency
assessment would, individually or in the aggregate, have a Material Adverse
Effect. There is no material tax lien, whether imposed by any Federal,
state, or other taxing authority, outstanding against the assets,
properties or business of the Company or any of its subsidiaries;
(dd) No labor disturbance by the employees of the Company or any
of its Subsidiaries exists or, to the best of the Company's knowledge, is
imminent that would individually or in the aggregate have a Material
Adverse Effect;
(ee) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section
4975 of the Internal Revenue Code of 1986, as amended from time to time
(the "Code")), or "accumulated funding deficiency" (as defined in Section
302 of ERISA) or any of the events set forth in Section 4043(b) of ERISA
(other than events with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived) has occurred with respect to
any employee benefit plan maintained by the Company or any of its
Subsidiaries; each employee benefit plan maintained by the Company or any
of its Subsidiaries is in compliance in all material respects with
applicable law, including ERISA and the Code; the Company has not incurred
and does not expect to incur liability under Title IV of ERISA with respect
to the termination of, or withdrawal from any "pension plan;" and each
"pension plan" (as defined in ERISA) maintained by the Company or any of
its Subsidiaries that is intended to be qualified under Section 401(a) of
the Code is so qualified in all material respects and nothing has occurred,
whether by action or by failure to act, which could reasonably be expected
to cause the loss of such qualification;
(ff) Neither the Company nor any of its subsidiaries nor, to the
Company's knowledge, any of its employees or agents has at any time during
the last five years (i) made any unlawful contribution to any candidate for
foreign office, or failed to disclose fully any contribution in violation
of law or (ii) made any payment to any Federal or state governmental
officer or official, or other person charged with similar public or
quasi-public duties, other than payments required or permitted by the laws
of the United States or any jurisdiction thereof;
(gg) The statistical and market-related data included in the
Offering Circular are based on or derived from sources which the Company
believes are reliable and accurate;
(hh) The New Senior Credit Facility has been duly authorized by
the Company and, when executed and delivered by the Company and the
Subsidiaries of the Company that are obligors thereunder, the New Senior
Credit Facility will constitute a valid and legally binding instrument of
the Company, enforceable against the Company in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the New Senior Credit Facility
will conform in all material respects to the descriptions thereof in the
Offering Circular;
(ii) As of the Time of Delivery, the Company and the Guarantors
will own the Collateral free and clear of all Liens, except for Permitted
Liens, and subject to no prior Liens, except Permitted Prior Liens, and no
financing statements in respect of any property or assets of the
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Company or any Guarantor will be on file in favor of any person except a
holder of a Permitted Lien, covering only property subject to such
Permitted Lien;
(jj) When executed and delivered, the Security Documents will
create valid and enforceable security interests in favor of the Joint
Collateral Agent for the benefit of the Trustee on all property of the
Company and the Guarantors, except Excluded Assets which security interests
will secure the repayment of the Securities and the other obligations
purported to be secured thereby and as of the Time of Delivery, and upon
(i) filing of the UCC financing statements duly authorized by the Company
and each Guarantor and specifically identified in the Pledge and Security
Agreement or a schedule thereto and (ii) the recording of a valid trademark
security agreement and a valid patent security agreement in the U.S. Patent
and Trademark Office within three months of the date hereof, and the
recording of a valid copyright security agreement in the U.S. Copyright
Office within one (1) month of the date hereof, against the United States
issued registrations and pending applications for trademarks, patents and
copyrights, respectively, included in the Collateral, in each case in the
form duly authorized, executed and delivered to the Joint Collateral Agent
at the Time of Delivery by each of the Company and each applicable
Guarantor such Lien will have been duly perfected as to all Collateral
(except for those liens which are the subject of the covenant entitled
"Failure to Deliver Security Documents; Increased Interest Rate" in the
Offering Circular," and with respect to patents, copyrights and trademarks,
to the extent such perfection may be achieved by filings made in the U.S.
Patent and Trademark Office and U.S. Copyright Office); PROVIDED, HOWEVER,
that the subsequent recordation of the trademark security agreement, patent
security agreement and the copyright security agreement in the U.S. Patent
and Trademark Office and U.S. Copyright Office, as applicable, may be
necessary to perfect the security interest of the Joint Collateral Agent in
issued registrations and applications for other United States Intellectual
Property that are acquired by the Company and any Grantor after the date
hereof; the registration of unregistered copyrights in the U.S. Copyright
Office may be required in order to perfect the Joint Collateral Agent's
lien therein; and the taking of actions outside the United States may be
required in order to perfect the Joint Collateral Agent's lien in
Intellectual Property included in the Collateral which is protected under
non-U.S. law;
(kk) As of the Time of Delivery, the representations and
warranties contained in the Security Documents will be true and correct in
all material respects;
(ll) As of the Time of Delivery, the Liens will not be subject in
priority to any other Liens, except Permitted Prior Liens; and
(mm) The Securities, the Guarantees, the Indenture, the
Registration Rights Agreement and the Security Documents will conform in
all material respects to the descriptions thereof in the Offering Circular.
2. Subject to the terms and conditions herein set forth, the Company and
the Guarantors agree to issue and sell to each of the Purchasers, and each of
the Purchasers agrees, severally and not jointly, to purchase from the Company
and the Guarantors, at a purchase price of 95.952% of the principal amount
thereof, the principal amount of Securities set forth opposite the name of such
Purchaser in Schedule I hereto (including the Guarantees thereof).
3. Upon the authorization by you of the release of the Securities and the
Guarantees, the several Purchasers propose to offer the Securities for sale upon
the terms and conditions set forth in this Agreement and the Offering Circular
and each Purchaser hereby represents and warrants to, and agrees with the
Company and the Guarantors that:
9
(a) It will offer and sell the Securities (i) inside the United States
only to persons who it reasonably believes are "qualified institutional buyers"
("QIBs") within the meaning of Rule 144A under the Act in transactions meeting
the requirements of Rule 144A and (ii) through its selling agents, outside the
United States, to non-U.S. persons in reliance on Regulation S under the Act;
(b) It is an Institutional Accredited Investor; and
(c) It will not offer or sell the Securities by any form of general
solicitation or general advertising, including but not limited to the methods
described in Rule 502(c) under the Act.
4. (a) The Securities to be purchased by each Purchaser hereunder will be
represented by one or more definitive global Securities in book-entry form which
will be deposited by or on behalf of the Company with The Depository Trust
Company ("DTC") or its designated custodian. The Company and the Guarantors will
deliver the Securities to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., for the account of each
Purchaser, against payment by or on behalf of such Purchaser of the purchase
price therefor by wire transfer in immediately available funds, by causing DTC
to credit the Securities to the account of ▇▇▇▇▇▇▇, Sachs & Co. at DTC. The
Company will cause the certificates representing the Securities and the
Guarantees to be made available to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. for checking at least 24
hours prior to the Time of Delivery at the office of DTC or its designated
custodian (the "Designated Office"). The time and date of such delivery and
payment shall be 9:00 a.m., New York City time, on March 19, 2003, or at such
other time and date as ▇▇▇▇▇▇▇, Sachs & Co. and the Company may agree upon in
writing. Such time and date are herein called the "Time of Delivery;" and
(b) The documents to be delivered at the Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross-receipt
for the Securities and any additional documents requested by the Purchasers
pursuant to Section 7(l) hereof, will be delivered at such time and date at the
offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Closing Location"), and the Securities will be delivered at
the Designated Office, all at the Time of Delivery. A meeting will be held at
the Closing Location at 5:00 p.m., New York City time, on the New York Business
Day next preceding the Time of Delivery, at which meeting the final drafts of
the documents to be delivered pursuant to the preceding sentence will be
available for review by the parties hereto. For the purposes of this Section 4,
"New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
5. Each of the Company and the Guarantors, jointly and severally, agrees
with each of the Purchasers:
(a) To prepare the Offering Circular in a form approved by you; to make no
amendment or any supplement to the Offering Circular which shall be disapproved
by you promptly after reasonable notice thereof; and to furnish you with copies
thereof;
(b) Promptly from time to time to take such action as ▇▇▇▇▇▇▇, Sachs & Co.
may reasonably request to qualify the Securities for offer or sale under the
securities laws of such jurisdictions as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to facilitate
secondary transactions in the Securities PROVIDED that in connection therewith
neither of the Company or any of its Subsidiaries shall be required to qualify
as a foreign corporation or to file a general consent to service of process in
any jurisdiction;
(c) Promptly from time to time to take such action as you may reasonably
request to qualify the Securities for offering and sale under the securities
laws of such jurisdictions as you may request
10
and to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Securities, PROVIDED that in connection
therewith neither the Company nor any of its Subsidiaries shall be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(d) To furnish the Purchasers with copies of the Offering Circular and
each amendment or supplement thereto with the independent accountants' report(s)
in the Offering Circular, and any amendment or supplement containing amendments
to the financial statements covered by such report(s), signed by the
accountants, and additional written and electronic copies thereof in such
quantities as you may from time to time reasonably request, and if, at any time
prior to the expiration of nine months after the date of the Offering Circular,
any event shall have occurred as a result of which the Offering Circular as then
amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
Offering Circular is delivered, not misleading, or, if for any other reason it
shall be necessary or desirable during such same period to amend or supplement
the Offering Circular, to notify you and upon your request to prepare and
furnish without charge to each Purchaser and to any dealer in securities as many
written and electronic copies as you may from time to time reasonably request of
an amended Offering Circular or a supplement to the Offering Circular which will
correct such statement or omission or effect such compliance;
(e) During the period beginning from the date hereof and continuing until
the date six months after the Time of Delivery, not to offer, sell contract to
sell or otherwise dispose of, except as provided hereunder any securities of the
Company or any Guarantor that are substantially similar to the Securities or the
Guarantees;
(f) Not to be or become, at any time prior to the expiration of three
years after the Time of Delivery, an open-end investment company, unit
investment trust, closed-end investment company or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act;
(g) At any time when the Company is not subject to Section 13 or 15(d) of
the Exchange Act, for the benefit of holders from time to time of Securities, to
furnish at its expense, upon request, to holders of Securities and prospective
purchasers of securities information (the "Additional Issuer Information")
satisfying the requirements of subsection (d)(4)(i) of Rule 144A under the Act;
(h) To use its commercially reasonable efforts to cause the Securities to
be eligible for the PORTAL trading system of the National Association of
Securities Dealers, Inc.;
(i) During a period of three years from the date of the Offering Circular,
if not otherwise available on the Commission's Electronic Data Gathering,
Analysis, and Retrieval System or similar system, to furnish to the holders of
the Securities as soon as practicable after the end of each fiscal year an
annual report (including a balance sheet and statements of income, stockholders'
equity and cash flows of the Company and its consolidated subsidiaries certified
by independent public accountants) and, as soon as practicable after the end of
each of the first three quarters of each fiscal year (beginning with the fiscal
quarter ending after the date of the Offering Circular), to make available to
its stockholders consolidated summary financial information of the Company and
its subsidiaries for such quarter in reasonable detail;
(j) During a period of three years from the date of the Offering Circular,
to furnish to you, and for so long as ▇▇▇▇▇▇▇, Sachs & Co. may offer to sell
Securities in secondary transactions to furnish to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., copies
of all reports or other communications (financial or other)
11
furnished to stockholders of the Company or any of the Guarantors, and to
deliver to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any securities
exchange on which the Securities or any class of securities of the Company or
any of the Guarantors is listed; and (ii) such additional information concerning
the business and financial condition of the Company and the Guarantors as you
may from time to time reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders generally
or to the Commission);
(k) The Company and the Guarantors shall file and use their best efforts
to cause to be declared or become effective under the Securities Act, on or
prior to 210 days after the Time of Delivery, a registration statement on Form
S-4 providing for the registration of the Exchange Securities and the Exchange
Guarantees, the exchange of the Securities for the Exchange Securities, all in a
manner which will permit persons who acquire the Exchange Securities to resell
the Exchange Securities pursuant to Section 4(1) of the Securities Act;
(l) To do and perform all things required to be done and performed under
the Securities, the Guarantees, Indenture, Registration Rights Agreement and
Security Documents prior to and after the Time of Delivery;
(m) To comply with all agreements set forth in the representation letters
of the Company to DTC relating to the approval of the Notes by DTC for "book
entry" transfer;
(n) To use the net proceeds received by it from the sale of the Securities
pursuant to this Agreement in the manner specified in the Offering Circular
under the caption "Use of Proceeds;" and
(o) To use its commercially reasonable efforts to deliver to the Trustee
after the Time of Delivery as-built surveys of the sites of the owned real
property or leasehold real property as set forth in the Letter of Proposal,
dated March 6, 2003, by and between the Company and ▇▇▇▇-▇▇▇▇▇ Corporation
(attached as Schedule II hereto), which surveys shall satisfy the requirements
set forth in the "Survey Requirements for Hexcel Corporation Project Surveys"
section of Schedule II.
6. Each of the Company and the Guarantors, jointly and severally,
covenants and agrees with the several Purchasers that the Company and the
Guarantors will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the issue of the Securities and the Guarantees and all other
expenses in connection with the preparation, printing and filing of the
Preliminary Offering Circular and the Offering Circular and any amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Purchasers and dealers; (ii) the cost of printing or producing any Agreement
among Purchasers, this Agreement, the Indenture, the Registration Rights
Agreement, the Security Documents, the Blue Sky and Legal Investment Memoranda,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities, the
Exchange Securities, the Guarantees and the Exchange Guarantees for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for the Purchasers in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) the cost of preparing the Securities, the Exchange Securities, the
Guarantees and the Exchange Guarantees; (vi) the fees and expenses of the
Trustee and any agent of the Trustee and the fees and disbursements of counsel
for the Trustee and any collateral agent in connection with the Indenture, the
Security Documents, the Securities, the Exchange Securities, the Guarantees and
the Exchange Guarantees; (vii) any cost
12
incurred in connection with the designation of the Securities for trading in
PORTAL; and (viii) all other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided for in
this Section. It is understood, however, that, except as provided in this
Section, and Sections 8 and 11 hereof, the Purchasers will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Purchasers and the Company (with respect only
to the satisfaction of the conditions contained in Section 7(m) hereof)
hereunder shall be subject, in their discretion, to the condition that all
representations and warranties and other statements of the Company and the
Guarantors herein are, at and as of the Time of Delivery, true and correct, the
condition that the Company and the Guarantors shall have performed all of their
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Purchasers, shall have furnished
to you such opinion or opinions, dated the Time of Delivery, with respect to
such matters you may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters;
(b) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP ("Skadden"), counsel for the
Company, shall have furnished to you their written opinion, dated the Time of
Delivery, in form and substance reasonably satisfactory to you and subject to
customary and appropriate assumptions and qualifications, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation, in good standing under the laws of the State of
Delaware;
(ii) The Company has an authorized capitalization as set forth in
the Offering Circular and the authorized capital stock of the Company
conforms as to legal matters to the description thereof contained in the
Offering Circular;
(iii) Each Guarantor of the Company has been duly incorporated and
is validly existing as a corporation, in good standing under the laws of
the State of Delaware;
(iv) This Agreement has been duly authorized, executed and
delivered by the Company and the Guarantors;
(v) The Securities have been duly authorized and executed by the
Company, and when issued, authenticated and delivered by the Company
against payment therefor in accordance with the terms of the Purchase
Agreement, the Securities will constitute valid and binding obligations of
the Company entitled to the benefits provided by the Indenture and
enforceable against the Company in accordance with their terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
(vi) The issuance of Exchange Securities have been duly authorized
by the Company, and, when the Exchange Securities have been duly executed,
authenticated, issued and delivered in exchange for the Securities in
accordance with the terms of the Indenture, the Registration Rights
Agreement and the Exchange Offer, the Exchange Securities will constitute
valid and binding obligations of the Company entitled to the benefits of
the Indenture and enforceable against the Company in accordance with their
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
13
(vii) The Guarantees have been duly authorized, executed and
delivered by the Guarantors, and when the Securities are issued and
delivered by the Company against payment therefor in accordance with the
terms of the Purchase Agreement, the Guarantees will constitute valid and
binding obligations of the Guarantors, enforceable against the Guarantors
in accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity principles;
(viii) The Exchange Guarantees have been duly authorized by the
Guarantors, and, when the Exchange Guarantees have been duly executed,
authenticated, issued and delivered in exchange for the Guarantees in
accordance with the terms of the Indenture, the Registration Rights
Agreement and the Exchange Offer, the Exchange Guarantees constitute valid
and binding obligations of the Guarantors enforceable against the
Guarantors in accordance with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(ix) The Indenture has been duly authorized, executed and
delivered by the Company and the Guarantors and constitutes a valid and
binding agreement of the Company and the Guarantors, enforceable against
the Company and the Guarantors in accordance with its terms subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
(x) The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and the Guarantors and constitutes a
valid and binding agreement of the Company and the Guarantors, enforceable
against the Company and the Guarantors in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles;
(xi) Each of the Security Documents has been duly authorized,
executed and delivered by the Company and the Guarantors and each is a
valid and binding instrument of the Company and the Guarantors, enforceable
against the Company and the Guarantors in accordance with its respective
terms subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting creditors'
rights and to general equity principles;
(xii) Assuming the accuracy of the representations and warranties
set forth in Sections 4.4 and 4.8 of each of the Stock Purchase Agreement,
dated December 18, 2002, by and among the Company, GS Capital Partners
2000, L.P., GS Capital Partners 2000 Offshore, L.P., GS Capital Partners
2000 Employee Fund, L.P., GS Capital Partners 2000 GmbH & Co. Beteiligungs
KG and the Stock Purchase Agreement, dated December 18, 2002, by and among
the Company, Berkshire Investors LLC, Berkshire Fund V, Limited
Partnership, Berkshire Fund VI Limited Partnership, Greenbriar Equity Fund,
L.P. and Greenbriar Co-Investment Partners, L.P., the execution and
delivery by the Company and the Guarantors of the Indenture, the
Registration Rights Agreement, the Security Documents and this Agreement
and the consummation by the Company and the Guarantors of the transactions
contemplated thereby, including the issuance and sale of the Securities and
the consummation of the Financing Transactions, will not (i) conflict with
any of the provisions of the Certificate of Incorporation or By-laws or
other organizational document of the Company or the Guarantors, (ii)
constitute a violation of, or a breach or default under any agreement or
instrument identified
14
to Skadden by the Company as being material to the business or financial
condition of the Company, or (iii) violate or conflict with, or result in
any contravention of, any Applicable Law (as defined below);
(xiii) No Governmental Approval, which has not been obtained or
taken and is not in full force and effect, is required to authorize, or is
required in connection with, the Financing Transactions or the execution or
delivery by the Company or the Guarantors of this Agreement, the Security
Documents, the Registration Rights Agreement or the Indenture or for the
consummation by the Company or the Guarantors of the transactions
contemplated hereby and thereby (including for the issue and sale by the
Company and the Guarantors of the Securities and the Guarantees);
(xiv) The statements set forth in the Offering Circular under the
caption "Description of Notes;" insofar as they purport to constitute a
summary of the terms of the Securities and the Security Documents, under
the captions "Taxation," "Description of Material Debt," Equity
Transactions," and under the caption "Plan of Distribution," insofar as
they purport to describe the provisions of the laws and documents referred
to therein, fairly summarize such provisions in all material respects;
(xv) Assuming (i) the accuracy of the representations and
warranties of the Company and of you set forth in the Purchase Agreement,
(ii) the due performance by the Company of the covenants and agreements set
forth in the Purchase Agreement and the due performance by you of the
covenants and agreements set forth in the Purchase Agreement, (iii) your
compliance with the offering and transfer procedures and restrictions
described in the Offering Circular, (iv) the accuracy of the
representations and warranties made in accordance with the Purchase
Agreement and the Offering Circular by purchasers to whom you initially
resell the Securities and (v) that reasonable steps have been taken to
ensure that purchasers to whom the Purchasers initially resell the
Securities have been informed that the Purchasers may be relying on the
exemption from the provisions of Section 5 of the Securities Act provided
by Rule 144A in connection with such sales the offer, sale and delivery of
the Securities to you in the manner contemplated by the Purchase Agreement
and the Offering Circular and the initial resale of the Securities by you
in the manner contemplated in the Offering Memorandum and the Purchase
Agreement, do not require registration under the Securities Act, and the
Indenture does not require qualification under the Trust Indenture Act, it
being understood that we do not express any opinion as to any subsequent
reoffer or resale of any Security;
(xvi) The Company is not an "investment company," as such term is
defined in the Investment Company Act;
(xvii) The shares of capital stock of each of the Guarantors shown
by the stock record books of the Guarantors as being issued and outstanding
immediately prior to the date hereof are owned of record by the Company.
Such shares have been duly authorized and are fully paid and nonassessable,
and free and clear of any preemptive rights or any similar rights arising
under such Guarantor's Certificate of Incorporation or By-laws or
Applicable Law.
(xviii) Under the Uniform Commercial Code in effect in the State of
New York (without regard to laws referenced in Section 9-201 thereof, the
"New York UCC"), the provisions of the Security Agreement are effective to
create a valid security interest in each of the Company's and each
Guarantor's rights in the Collateral (as defined in the Security Agreement)
to the extent the New York UCC governs a security interest in such
collateral, in favor of the Joint
15
Collateral Agent for the benefit of the Trustee to secure the Secured
Obligations (as defined in the Security Agreement);
(xix) To the extent the Uniform Commercial Code in effect in the
State of Delaware (without regard to laws referenced in Section 9-201
thereof, the "Delaware UCC"), is applicable to the authorization of the
Company's financing statement, pursuant to the provisions of the Security
Agreement the Company has authorized the filing of the Company's financing
statement for purposes of Section 9-509 of the Delaware UCC;
(xx) To the extent the Delaware UCC is applicable to the
authorization of each Guarantor's financing statement, pursuant to the
provisions of the Security Agreement, each Guarantor has authorized the
filing of its respective financing statement for purposes of Section 9-509
of the Delaware UCC;
(xxi) To the extent the Delaware UCC is applicable, the Company's
financing statement includes not only all of the types of information
required by Section 9-502(a) of the Delaware UCC but also the types of
information without which the office of the Secretary of State of the State
of Delaware (the "Filing Office"), may refuse to accept the Company's
financing statement pursuant to Section 9-516 of the Delaware UCC;
(xxii) To the extent the Delaware UCC is applicable, each
Guarantor's financing statement includes not only all of the types of
information required by Section 9-502(a) of the Delaware UCC but also the
types of information without which the Filing Office may refuse to accept
such Guarantor's financing statement pursuant to Section 9-516 of the
Delaware UCC;
(xxiii) To the extent the Delaware UCC is applicable, the security
interest in favor of the Joint Collateral Agent for the benefit of the
Trustee will be perfected in each of the Company's and each Guarantor's
rights in all Collateral to the extent the Delaware UCC governs a security
interest in such collateral, upon the later of the attachment of the
security interest and the filing of each of the Company's financing
statement and each Guarantor's financing statement in the Filing Office;
provided, however, we express no opinion with respect to (i) money, (ii)
deposit accounts, (iii) letter of credit rights, (iv) goods covered by a
certificate of title statute, (v) as-extracted collateral, timber to be cut
or (vi) any property subject to a statute, regulation or treaty of the
United States whose requirements for a security interest's obtaining
priority over the rights of a lien creditor with respect to the property
preempt Section 9-310(a) of the Delaware UCC;
(xxiv) You will have asked whether the Company and each Guarantor
are "registered organizations" as such term is defined in Section
9-102(a)(70) of the Delaware UCC. Pursuant to Section 9-102(a)(70) of the
Delaware UCC, a "registered organization" must be (i) organized solely
under the laws of a single State (or the United States) and (ii) the State
(or the United States) must maintain a public record showing the
organization to have been organized. Pursuant to Section 103(c)(6) of the
DGCL, the Secretary of State of the State of Delaware is required to
maintain a public record showing the Company and each Guarantor have been
organized. Based on our review of (i) a certified copy of a certificate of
incorporation of the Company from the Secretary of State of the State of
Delaware as to Company's existence in such state and (ii) a certified copy
of a certificate of incorporation of each Guarantor from the Secretary of
State of the State of Delaware as to each Guarantor's existence in such
state and to the extent the Delaware UCC is applicable, the Company and
each Guarantor are "registered organizations" under Section 9-102(a)(70) of
the Delaware UCC and the DGCL. We will have assumed that neither the
Company nor any Guarantor has
16
filed a certificate of incorporation or any similar document under the laws
of any jurisdiction other than the State of Delaware and that the internal
affairs of the Company and each Guarantor are not otherwise subject to the
laws of any other jurisdiction. We will call to your attention that to the
extent that the internal affairs of the Company or any Guarantor are
subject to regulation under the laws of another state, the State of
Delaware may recognize such authority. See, e.g., ▇▇▇▇▇▇▇▇▇ Inc. ▇. ▇▇▇▇▇,
531 A.2d 206 (Del. 1987). Further, we will have assumed that neither the
Company nor each Guarantor has or will file (A) any certificates of
transfer, continuance or domestication, or any similar certificates in the
State of Delaware pursuant to Sections 390(a) and 388(b)(1) of the DGCL or
(B) any similar certificates in any jurisdiction other than the State of
Delaware;
(xxv) To the extent that the federal trademark laws of the United
States of America are applicable to security interests in trademarks, the
provisions of the Intellectual Property Security Agreement together with
the recordation of the Intellectual Property Security Agreement in the
United States Patent and Trademark Office (the "PTO") against the U.S.
registered trademarks and trademark applications set forth on the schedules
thereto the "Trademarks") within three (3) months of the date thereof is
effective to create a valid security interest in the Company's and each
Guarantor's rights in such Trademarks in favor of the Joint Collateral
Agent for the benefit of the Trustee to secure the Secured Obligations that
is effective against subsequent purchasers of such Trademarks;
(xxvi) To the extent that the federal patent laws of the United
States of America are applicable to security interests in patents, the
provisions of the Intellectual Property Security Agreement together with
the recordation of the Intellectual Property Security Agreement in the PTO
against the U.S. patents and patent applications set forth on the schedules
thereto (the "Patents") within three (3) months of the date thereof is
effective to create a valid security interest in the Company's and each
Guarantor's rights in such Patents in favor of the Joint Collateral Agent
for the benefit of the Trustee to secure the Secured Obligations that is
effective against subsequent purchasers and mortgagees of such Patents;
(xxvii) To the extent that the federal copyright laws of the United
States of America are applicable to security interests in copyrights, the
provisions of the Intellectual Property Security Agreement together with
the recordation of the Intellectual Property Security Agreement in the
United States Copyright Office against the U.S. registered copyrights set
forth on the schedules thereto (the "Copyrights") within one (1) month of
the date thereof is effective to create a valid security interest in the
Company's and each Guarantor's rights in such Copyrights in favor of the
Joint Collateral Agent for the benefit of the Trustee to secure the Secured
Obligations that is effective against subsequent transferees of such
Copyrights.
(xxviii) The New Senior Credit Facility has been duly authorized by
the Company and, when executed and delivered by the Company and the
subsidiaries of the Company that are obligors thereunder, the New Senior
Credit Facility will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and
In addition, Skadden will state that it has participated in
conferences with officers and other representatives of the Company, counsel
for the Company, representatives of the independent accountants of the
Company and you and your counsel at which the contents of
17
the Offering Circular and related matters were discussed. Although we are
not passing upon, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Offering
Circular and have made no independent check or verification thereof, on the
basis of the foregoing, no facts have come to our attention that have led
us to believe that the Offering Circular, as of its date and as of the date
hereof, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading, except that we express no opinion or belief with
respect to the financial statements, schedules and other financial data
included. For purposes of the foregoing, Skadden will note that the
Offering Circular has been prepared in the context of a Rule 144A
transaction and not as part of a registration statement under the
Securities Act and does not contain all of the information that would be
required in a registration statement under the Securities Act.
For purposes of this Section 7, (A) "Governmental Approval" means any
consent, approval, license, authorization or validation of, or filing,
qualification or registration with, any Governmental Authority required to
be made or obtained by the Company pursuant to Applicable Laws, other than
any consent, approval, license, authorization, validation, filing,
qualification or registration which may have become applicable as a result
of the involvement of any other party (other than the Company) in the
transactions contemplated by this Agreement, the Indenture, the
Registration Rights Agreement, the Financing Transactions and the Security
Documents or because of such parties' legal or regulatory status or because
of any other facts specifically pertaining to such parties; (B)
"Governmental Authorities" means any court, regulatory body, administrative
agency or governmental body of the State of New York, the State of Delaware
or the United States of America having jurisdiction over the Company under
any laws of the State of New York, the Federal laws of the United States
and the DGCL; and (C) "Applicable Laws" means the DGCL, those laws, rules
and regulations of any court or governmental agency or body having
jurisdiction over the Company or any of its Subsidiaries or any of their
properties of the State of New York and the federal laws of the United
States of America, in each case, which, in our experience, are normally
applicable to transactions of the type contemplated by this Agreement, the
Indenture, the Registration Rights Agreement, the Financing Transactions
and the Security Documents (other than the United States federal securities
laws, state and foreign securities or blue sky laws, antifraud laws, the
New York UCC (as defined below) and the rules and regulations of the
National Association of Securities Dealers, Inc.) without our having made
any special investigation as to the applicability of any other law, rule or
regulation.
(c) ▇▇▇ ▇▇▇▇▇▇▇▇, Senior Vice President, General Counsel and Secretary for
the Company, shall have furnished to you his written opinion, dated the Time of
Delivery, in form and substance reasonably satisfactory to you, to the effect
that:
(i) The Company and each of the Guarantors has power and
authority (corporate and other) to own its properties and conduct its
business as described in the Offering Circular;
(ii) The Company has an authorized capitalization as set forth in
the Offering Circular, and all of the issued shares capital stock of the
Company have been duly and validly authorized and issued and are fully paid
and non-assessable;
(iii) All of the issued shares of capital stock of each Guarantor
have been duly and validly authorized and issued, are fully paid and
non-assessable, and (except for directors' qualifying shares and except as
otherwise set forth in the Offering Circular) are owned directly
18
or indirectly by the Company, free and clear of all liens, encumbrances or
claims, except for creditor's rights in general to assert claims against
the assets of the holder of such shares (such counsel being entitled to
rely in respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of officers of
the Company or each Guarantor, PROVIDED that such counsel shall state that
they believe that both you and they are justified in relying upon such
opinions and certificates);
(iv) The Company and each of the Guarantors has been duly
qualified as a foreign corporation for the transaction of business and is
in good standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such
qualification, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect (such counsel being
entitled to rely in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon certificates of
officers of the Company and each of the Guarantors, PROVIDED that such
counsel shall state that he believes that both you and he are justified in
relying upon such opinions and certificates);
(v) To the best of such counsel's knowledge and other than as set
forth in the Offering Circular, there are no legal or governmental
proceedings pending to which the Company or any of its Subsidiaries is a
party or of which any property of the Company or any of its Subsidiaries is
the subject which, if determined adversely to the Company or any of its
Subsidiaries, would individually or in the aggregate have a Material
Adverse Effect on the current or future consolidated financial position,
stockholders' equity or results of operations of the Company and its
Subsidiaries; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(vi) To the best of such counsel's knowledge, neither the Company
nor any of its subsidiaries is (i) in violation of its Certificate of
Incorporation, Certificate of Formation, Partnership Agreement or By-laws
or other organizational documents or (ii) in default in the performance or
observance of any obligation, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound;
(vii) All of the outstanding shares of capital stock of each of the
Subsidiaries are owned of record by the Company. Such shares are also owned
beneficially by the Company and are free and clear of all adverse claims,
limitations on voting rights, options, and other encumbrances (other than
those created pursuant to the Security Documents) and are duly authorized,
validly issued, fully paid and nonassessable, except, where applicable, as
provided by Section 630 of the New York Business Corporation Law as to the
subsidiaries incorporated under the laws of New York;
(vii) Any and all documents filed by the Company since January 1,
2002 with the Commission under the Exchange Act (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion), when they were filed with the Commission, complied as
to form in all material respects with the requirements of the Exchange Act,
and the rules and regulations of the Commission thereunder; and such
counsel has no reason to believe that any of such documents, when they were
so filed, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
documents were so filed, not misleading; and
19
(viii) Such counsel shall also state that, in the course of
preparing the Offering Circular, he has considered the information set
forth therein, and has participated in conferences with representatives and
officers of the Company, including its independent public accountants,
during the course of which the contents of the Offering Circular and
related matters were discussed; and that, as a result of such consideration
and participation, nothing has come to his attention which causes him to
believe that the Offering Circular and any further amendments or
supplements thereto made by the Company prior to the Time of Delivery
(other than the financial statements, financial data and supporting
schedules therein, as to which such counsel need express no opinion)
contained as of its date or contains as of the Time of Delivery an untrue
statement of a material fact or omitted or omits, as the case may be, to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(d) On the date of the Offering Circular prior to the execution of this
Agreement and also at the Time of Delivery, PricewaterhouseCoopers LLP shall
have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Offering Circular any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Offering Circular, and (ii) since the
respective dates as of which information is given in the Offering Circular there
shall not have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Offering
Circular, the effect of which, in any such case described in clause (i) or (ii),
is in the judgment of the Purchasers so material and adverse as to make it
impracticable or inadvisable to proceed with the offering or the delivery of the
Securities being issued at the Time of Delivery on the terms and in the manner
contemplated in this Agreement and in the Offering Circular;
(f) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities by any "nationally recognized
statistical rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities;
(g) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York State authorities or a material disruption in
commercial banking or securities settlement or clearance services in the United
States; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war;
or (v) the occurrence of any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere,
if the effect of any such event specified in clause (iv) or (v) in the judgment
of the Purchasers makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities being issued at the Time of
Delivery on the terms and in the manner contemplated in the Offering Circular;
(h) The Securities have been designated for trading on PORTAL;
20
(i) The Trustee shall have received (with a copy for the Purchasers) on
the Time of Delivery of:
(i) appropriately completed copies, which have been duly
authorized for filing by the appropriate Person, of Uniform Commercial Code
financing statements naming the Company and each Guarantor as a debtor and
the Trustee as the secured party, or other similar instruments or documents
to be filed under the UCC of all jurisdictions as may be necessary or, in
the reasonable opinion of the Trustee and its counsel, desirable to perfect
the security interests of the Trustee pursuant to the Security Documents;
(ii) appropriately completed copies, which have been duly
authorized for filing by the appropriate Person, of Uniform Commercial Code
Form UCC-3 termination statements, if any, necessary to release all Liens
(other than Permitted Liens) of any Person in any collateral described in
the Security Documents previously granted by any Person;
(iii) certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a similar search report certified
by a party acceptable to the Trustee, dated a date reasonably near to the
Time of Delivery, listing all effective financing statements which name the
Company or any Guarantor (under its present name and any previous names) as
the debtor, together with copies of such financing statements (none of
which shall cover any collateral described in the Security Documents, other
than any such financing statement which evidences a Permitted Prior Lien or
to which a Uniform Commercial Code Form UCC-3 termination statement
referred to in clause (ii) above has been delivered to the Trustee or the
Joint Collateral Agent;
(iv) such other approvals, opinions, or documents as the Trustee
may reasonably request in form and substance reasonably satisfactory to the
Trustee; and
(v) the Trustee and its counsel shall be satisfied that (i) the
Lien granted to the Trustee, for the benefit of the Secured Parties in the
collateral described above is of the priority described in the Offering
Circular; and (ii) no Lien exists on any of the collateral described above
other than the Lien created in favor of the Trustee, for the benefit of the
Secured Parties, pursuant the Security Documents;
(j) All Uniform Commercial Code financing statements or other similar
financing statements and Uniform Commercial Code Form UCC-3 termination
statements required pursuant to clause (h)(i) and (ii) above (collectively, the
"Filing Statements") shall have been delivered to CT Corporation System or
another similar filing service company acceptable to the Trustee (the "Filing
Agent");
(k) The Trustee shall have received evidence satisfactory to the Trustee
that the Trustee shall have "control" (within the meaning of Sections 8-106 and
9-106 of the UCC) over any securities accounts included in the Collateral and
"control" (within the meaning of Section 9-104 of the UCC) over the Asset Sale
Proceeds Account included in the Collateral;
(l) The Company and each of the Guarantors shall have furnished or caused
to be furnished to you at the Time of Delivery certificates of officers of the
Company and each Guarantor satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such Time of
Delivery, as to the performance by the Company and each Guarantor of all of its
obligations hereunder and the Security Documents to be performed at or prior to
such Time of Delivery, as to the matters set forth in subsection (e) of this
Section and as to such other matters as you may reasonably request;
21
(m) The Company shall have consummated the Financing Transactions prior
to, or simultaneously with, the Time of Delivery on substantially the same terms
described in the Offering Circular and the Purchasers shall have received
counterparts, conformed as executed, of all documents relating to the Financing
Transactions as they deem reasonably necessary to evidence the consummation
thereof;
(n) The Company and Guarantors shall have delivered executed copies of the
Securities, the Guarantees, the Indenture, the Registration Rights Agreement and
the Security Documents to the Purchasers;
(o) On the Closing Date, each Mortgage will conform, as to legal matters,
in all material respects to the description thereof contained in the Offering
Circular.
(p) The Company shall have furnished or caused to be furnished to you and
the Trustee the following documentation relating to the Mortgages at the Time of
Delivery:
(i) an opinion (satisfactory to you and counsel for the
Purchasers), dated the Time of Delivery, of counsel for the Company
acceptable to you in each state in which the property encumbered by a
Mortgage is located, to the effect that the relevant Mortgage has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable against the Company 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) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability; and
(ii) in respect of each Owned real property or leasehold real
property contemplated to be mortgaged a mortgagee's title insurance policy
(or policies) or marked up unconditional binder for such insurance. Each
such policy shall (A) be in an amount not less than the outstanding
principal amount of the indebtedness secured by such Mortgage that is
reasonably allocable to such real property; (B) be issued at ordinary
rates; (C) insure that the Mortgage insured thereby creates a valid first
Lien on, and security interest in, such Owned real property or leasehold
property contemplated to be mortgaged free and clear of all defects and
encumbrances, except as disclosed therein; (D) name you and the Trustee for
the benefit of the Secured Parties as the insured thereunder; (E) be in the
form of ALTA Loan Policy - 1970 Form B (Amended October 17, 1970 and
October 17, 1984) (or equivalent policies), if available; (F) contain such
endorsements and affirmative coverage as you and the Trustee may reasonably
request in form and substance acceptable to you and the Trustee, including,
without limitation (to the extent applicable with respect to such Owned
real property or leasehold property contemplated to be mortgaged and
available in the jurisdiction in which such Owned real property or
leasehold property contemplated to be mortgaged is located), the following:
variable rate endorsement; survey endorsement; comprehensive endorsement;
zoning; first loss, last dollar and tie-in endorsement; access coverage;
separate tax parcel coverage; usury; doing business; subdivision; CLTA
119.2 and CLTA 119.3 (for leased Real Estate, only); contiguity coverage;
and such other endorsements as you and the Trustee shall reasonably require
in order to provide insurance against specific risks identified by you and
the Trustee in connection with such Owned real property or leasehold
property, and (G) be issued by title companies reasonably satisfactory to
you and the Trustee (including any such title companies acting as
co-insurers or reinsurers, at the option of you and the Trustee). You and
the Trustee shall have received evidence satisfactory to it that all
premiums in respect of each such policy, all charges for mortgage recording
tax, and all related expenses, if any, have been paid;
22
(q) You and the Trustee shall have received from the Company its existing
policies of flood insurance that cover parcels of improved real property that
are encumbered by any Mortgage and have improvements which are located in a
flood zone;
(r) You and the Trustee shall have received a copy of all recorded
documents referred to, or listed as exceptions to title in, the title policy or
policies referred to in clause (ii) above and a copy of all other material
documents affecting the Owned real property or leasehold property contemplated
to be mortgaged; and
(s) For a period of 180 days from the date of the Offering Circular, the
Company and its Subsidiaries will not, directly or indirectly, sell, offer to
sell, contract to sell, grant any option to purchase, issue any instrument
convertible into or exchangeable for, or otherwise transfer or dispose of (or
enter into any transaction or device which is designed to, or could be expected
to, result in the disposition in the future of), any debt securities of the
Company or any of its Subsidiaries in either the capital markets or the bank
loan markets, except (i) in exchange for the Exchange Securities in connection
with the Exchange Offer or (ii) with the prior consent of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
8. (a) The Company and each Guarantor will, jointly and severally,
indemnify and hold harmless each Purchaser against any losses, claims, damages
or liabilities, joint or several, to which such Purchaser may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Offering Circular or the Offering Circular, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading, and will reimburse each Purchaser for any legal or other
expenses reasonably incurred by such Purchaser in connection with investigating
or defending any such action or claim as such expenses are incurred; PROVIDED,
HOWEVER, that neither the Company nor any Guarantor shall be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Offering Circular or the Offering
Circular or any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by any Purchaser through
▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein;
(b) Each Purchaser will indemnify and hold harmless the Company and the
Guarantors against any losses, claims, damages or liabilities to which the
Company and any Guarantor may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Offering Circular or
the Offering Circular, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact or necessary to make the statements therein not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary Offering
Circular or the Offering Circular or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by such Purchaser through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use
therein; and will reimburse the Company and the Guarantors for any legal or
other expenses reasonably incurred by the Company and the Guarantors in
connection with investigating or defending any such action or claim as such
expenses are incurred;
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of
23
the commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified
party otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim 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
any indemnified party;
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party 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 the relative benefits received
by the Company and the Guarantors on the one hand and the Purchasers on the
other from the offering of the Securities. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and the Guarantors on the one hand and the Purchasers on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Guarantors on the one hand and the Purchasers on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company and the Guarantors
bear to the total underwriting discounts and commissions received by the
Purchasers, in each case as set forth in the Offering Circular. The relative
fault 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
and the Guarantors on the one hand or the Purchasers on the other 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 Purchasers agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the 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 above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to
24
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Purchaser shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to investors
were offered to investors exceeds the amount of any damages which such Purchaser
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. The Purchasers' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint; and
(e) The obligations of the Company and the Guarantors under this Section 8
shall be in addition to any liability which the Company and the Guarantors may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Purchaser within the meaning of the Act; and
the obligations of the Purchasers under this Section 8 shall be in addition to
any liability which the respective Purchasers may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company or any Guarantor and to each person, if any, who controls the Company or
any Guarantor within the meaning of the Act.
9. (a) If any Purchaser shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, you may in your discretion
arrange for you or another party or other parties to purchase such Securities on
the terms contained herein. If within 36 hours after such default by any
Purchaser you do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of 36 hours within which to
procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Securities, or the Company notifies you that it has so arranged for the
purchase of such Securities, you or the Company shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Offering Circular,
or in any other documents or arrangements, and the Company agrees to prepare
promptly any amendments to the Offering Circular which in your opinion may
thereby be made necessary. The term "Purchaser" as used in this Agreement shall
include any person substituted under this Section with like effect as if such
person had originally been a party to this Agreement with respect to such
Securities; and
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of such
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then the Company shall have
the right to require each non-defaulting Purchaser to purchase the principal
amount of Securities which such Purchaser agreed to purchase hereunder and, in
addition, to require each non-defaulting Purchaser to purchase its pro rata
share (based on the principal amount of Securities which such Purchaser agreed
to purchase hereunder) of the Securities of such defaulting Purchaser or
Purchasers for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Purchaser from liability for its default;
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of Securities
which remains unpurchased exceeds one-eleventh of the aggregate principal amount
of all the Securities, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Purchasers to purchase
Securities of a defaulting Purchaser or Purchasers, then this Agreement shall
thereupon terminate, without liability on
25
the part of any non-defaulting Purchaser or the Company, except for the expenses
to be borne by the Company and the Purchasers as provided in Section 6 hereof
and the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Purchaser from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Guarantors and the several Purchasers,
as set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Purchaser or any controlling person of any Purchaser, or the
Company, the Guarantors or any officer or director or controlling person of the
Company or a Guarantor, and shall survive delivery of and payment for the
Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Purchaser except as
provided in Sections 6 and 8 hereof; but, if for any other reason, the
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Purchasers through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Purchasers in making preparations for the
purchase, sale and delivery of the Securities, but the Company shall then be
under no further liability to any Purchaser except as provided in Sections 6 and
8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Purchasers, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Purchaser made or given
by you jointly or by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Purchasers shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of ▇▇▇▇▇▇▇, Sachs &
Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Registration
Department; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the Offering
Circular, Attention: Secretary; PROVIDED, HOWEVER, that any notice to a
Purchaser pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Purchaser at its address set forth in
its Purchasers' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Purchasers, the Company, the Guarantors and, to the extent provided in
Sections 8 and 10 hereof, the officers and directors of the Company and the
Guarantors and each person who controls the Company, any Guarantor or any
Purchaser, and their respective heirs, executors, administrators, successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. No purchaser of any of the Securities from any Purchaser
shall be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
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16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
17. The Company is authorized, subject to applicable law, to disclose any
and all aspects of this potential transaction that are necessary to support any
U.S. Federal income tax benefits expected to be claimed with respect to such
transaction, and all materials of any kind (including tax opinions and other tax
analyses) related to those benefits, without the Purchasers imposing any
limitation of any kind.
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If the foregoing is in accordance with your understanding, please sign and
return to us five counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Purchasers, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Purchasers, the Company and
the Guarantors. It is understood that your acceptance of this letter on behalf
of each of the Purchasers is pursuant to the authority set forth in a form of
Agreement among Purchasers, the form of which shall be submitted to the Company
for examination upon request, but without warranty on your part as to the
authority of the signers thereof.
Very truly yours,
Hexcel Corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman, President and CEO
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Holding Corp.,
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
▇▇▇▇▇-▇▇▇▇▇▇▇▇ Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
Hexcel Pottsville Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
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Accepted as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Fleet Securities, Inc.
By: /s/ ▇▇▇▇▇▇▇, Sachs & Co.
----------------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
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