<PAGE> 1
EXHIBIT 1.1
R.J. TOWER CORPORATION
Euro150,000,000
9.25% Senior Notes due 2010
PURCHASE AGREEMENT
July 19, 2000
CHASE MANHATTAN INTERNATIONAL LIMITED
BANK OF AMERICA INTERNATIONAL LIMITED
DONALDSON, LUFKIN & JENRETTE INTERNATIONAL
ABN AMRO INCORPORATED
FIRST CHICAGO LIMITED
SCOTIA CAPITAL (USA) INC.
c/o Chase Manhattan International Limited
125 London Wall
London EC2Y 5AJ
England
Ladies and Gentlemen:
R.J. Tower Corporation, a Michigan corporation (the "Company"),
proposes to issue and sell (a)150,000,000 aggregate principal amount of its
9.25% Senior Notes due 2010 (the "Notes"). The Notes will be guaranteed
(collectively, the "Guarantees" and together with the Notes, the "Securities")
by Tower Automotive, Inc. ("Tower") and by each of the Company's subsidiaries
listed on the signature pages hereof (Tower and the Company's subsidiaries,
together with any subsidiary that in the future executes a supplemental
indenture pursuant to which such subsidiary agrees to guarantee the Notes,
collectively, the "Guarantors"). The Notes will be issued pursuant to an
Indenture to be dated as of July 25, 2000 (the "Indenture") among the Company,
the Guarantors and United States Trust Company of New York, as trustee (the
"Trustee"). The Company and the Guarantors hereby confirm their agreement with
Chase Manhattan International Limited ("CMIL"), Bank of America International
Limited, Donaldson, Lufkin & Jenrette International, ABN AMRO Incorporated,
First Chicago Limited and Scotia Capital (USA) Inc. (together with CMIL and
collectively, the "Initial Purchasers") concerning the purchase of the
Securities from the Company by the several Initial Purchasers.
The Securities will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon an exemption therefrom. The Company and the
Guarantors have prepared a preliminary offering memorandum dated July 3, 2000
(the "Preliminary Offering Memorandum") and will prepare an
<PAGE> 2
offering memorandum dated the date hereof (the "Offering
Memorandum") setting forth information concerning the Company, the Guarantors
and the Securities. Copies of the Preliminary Offering Memorandum have been, and
copies of the Offering Memorandum will be, delivered by the Company and the
Guarantors, to the Initial Purchasers pursuant to the terms of this Agreement.
Any references herein to the Preliminary Offering Memorandum and the Offering
Memorandum shall be deemed to include all amendments and supplements thereto,
unless otherwise noted. The Company and the Guarantors hereby confirm that they
have authorized the use of the Preliminary Offering Memorandum and the Offering
Memorandum in connection with the offering and resale of the Securities by the
Initial Purchasers in accordance with Section 2.
Holders of the Securities (including the Initial Purchasers and their
direct and indirect transferees) will be entitled to the benefits of an Exchange
and Registration Rights Agreement, substantially in the form attached hereto as
Annex A (the "Registration Rights Agreement"), pursuant to which the Company and
the Guarantors will agree to file with the Securities and Exchange Commission
(the "Commission"): (i) a registration statement under the Securities Act (the
"Exchange Offer Registration Statement") registering an issue of senior notes of
the Company (the "Exchange Securities") that are guaranteed by the Guarantors
and are identical in all material respects to the Securities (except that the
Exchange Securities will not contain transfer restrictions) and (ii) under
certain circumstances, a shelf registration statement pursuant to Rule 415 under
the Securities Act (the "Shelf Registration Statement").
Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Offering Memorandum.
1. Representations, Warranties and Agreements of the Company. The
Company and each of the Guarantors, jointly and severally, represent and warrant
to, and agree with, the several Initial Purchasers on and as of the date hereof
that:
(a) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, did not, and on the Closing Date the
Offering Memorandum will not, contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the
Company and the Guarantors make no representation or warranty as to
information contained in or omitted from the Preliminary Offering
Memorandum or the Offering Memorandum in reliance upon and in conformity
with written information relating to the Initial Purchasers furnished to
the Company by or on behalf of any Initial Purchaser specifically for use
therein (the "Initial Purchasers' Information").
(b) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, contains all of the information
that, if requested by a prospective purchaser of the Securities, would be
required to be provided to such prospective purchaser pursuant to Rule
144A(d)(4) under the Securities Act.
-2-
<PAGE> 3
(c) Assuming the accuracy of the representations and warranties of the
Initial Purchasers contained in Section 2 and their compliance with the
agreements set forth therein, it is not necessary, in connection with the
issuance and sale of the Securities to the Initial Purchasers and the
offer, resale and delivery of the Securities by the Initial Purchasers in
the manner contemplated by this Agreement and the Offering Memorandum, to
register the Securities under the Securities Act or to qualify the
Indenture under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
(d) Tower, the Company and each of Tower's other subsidiaries have
been duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of incorporation,
are duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in which
they are engaged, except where the failure to so qualify or have such power
or authority would not, singularly or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of the Company and its subsidiaries or
Tower and its subsidiaries, in each case, taken as a whole (a "Material
Adverse Effect").
(e) Tower has an authorized capitalization as set forth in the
Offering Memorandum under the heading "Capitalization"; and all of the
outstanding shares of capital stock of Tower have been duly and validly
authorized and issued and are fully paid and non-assessable. All of the
outstanding shares of capital stock of each wholly owned subsidiary of
Tower have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by Tower, and except as
set forth in the Offering Memorandum, free and clear of any lien, charge,
encumbrance, security interest, restriction upon voting or transfer or any
other claim of any third party that is material to the Company and its
subsidiaries or Tower and its subsidiaries, in each case taken as a whole.
(f) The Company has full right, power and authority to execute and
deliver the Transaction Documents (as defined herein) (to the extent a
party thereto), and to perform its obligations hereunder and thereunder.
Each of the Guarantors has full right, power and authority to execute and
deliver the Transaction Documents (to the extent a party thereto) and to
perform its obligations hereunder and thereunder. All corporate action by
the Company or the Guarantors required to be taken for the due and proper
authorization, execution and delivery of each of the Transaction Documents
and the consummation of the transactions contemplated thereby have been
duly and validly taken. This Agreement, the Indenture, the Notes, the
Guarantees and the Registration Rights Agreement are herein referred to
collectively as the "Transaction Documents."
-3-
<PAGE> 4
(g) This Agreement has been duly authorized, executed and delivered by
the Company and each of the Guarantors and constitutes a valid and legally
binding agreement of the Company and each of the Guarantors.
(h) The Registration Rights Agreement has been duly authorized by the
Company and each of the Guarantors and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will constitute a
valid and legally binding agreement of the Company and each of the
Guarantors enforceable against the Company and each of the Guarantors in
accordance with its terms, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered in
a proceeding in equity or at law).
(i) The Indenture has been duly authorized by the Company and each of
the Guarantors and, when duly executed and delivered in accordance with its
terms by each of the parties thereto, will constitute a valid and legally
binding agreement of the Company and each of the Guarantors enforceable
against the Company and each of the Guarantors in accordance with its
terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally and
by general equitable principles (whether considered in a proceeding in
equity or at law). On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act and the
rules and regulations of the Commission applicable to an indenture which is
qualified thereunder.
(j) The Notes have been duly authorized by the Company and, when duly
executed, authenticated, issued and delivered as provided in the Indenture
and paid for as provided herein, will be duly and validly issued and
outstanding and will constitute valid and legally binding obligations of
the Company entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except to the extent
that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law).
(k) The Guarantees have been duly authorized, executed and delivered
by each of the Guarantors and, when duly executed and delivered by the
Guarantors, will constitute valid and legally binding obligations of the
Guarantors entitled to the benefits of the Indenture and enforceable
against each Guarantor in accordance with its terms, except to the extent
that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law).
-4-
<PAGE> 5
(l) Each Transaction Document conforms in all material respects to the
description thereof contained in the Offering Memorandum.
(m) The execution, delivery and performance by the Company and the
Guarantors of each of the Transaction Documents (to the extent a party
thereto), the issuance, authentication, sale and delivery of the Securities
and compliance by the Company and the Guarantors with the terms thereof and
the consummation of the transactions contemplated by the Transaction
Documents will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of Tower or any of its subsidiaries pursuant to, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which Tower or any of its subsidiaries is a party or by which
Tower or any of its subsidiaries is bound or to which any of the property
or assets of Tower or any of its subsidiaries is subject other than such
breaches, defaults, liens or charges that would not, individually or in the
aggregate, have a Material Adverse Effect or materially impair the ability
of the Company or the Guarantors to perform their obligations under the
Transaction Documents, nor will such actions result in any violation of the
provisions of the charter or by-laws of Tower or any of its subsidiaries or
any statute or any judgment, order, decree, rule or regulation of any court
or arbitrator or governmental agency or body having jurisdiction over Tower
or any of its subsidiaries or any of their properties or assets; and no
consent, approval, authorization or order of, or filing or registration
with, any such court or arbitrator or governmental agency or body under any
such statute, judgment, order, decree, rule or regulation is required for
the execution, delivery and performance by the Company or the Guarantors of
each of the Transaction Documents (to the extent a party thereto), the
issuance, authentication, sale and delivery of the Securities and
compliance by the Company or the Guarantors with the terms thereof and the
consummation of the transactions contemplated by the Transaction Documents,
except for such consents, approvals, authorizations, filings, registrations
or qualifications (i) that shall have been obtained or made prior to the
Closing Date, (ii) as may be required to be obtained or made under the
Securities Act and applicable state securities laws as provided in the
Registration Rights Agreement, or under the Exchange Act or (iii) that if
not obtained or made, would not, individually or in the aggregate, have a
Material Adverse Effect or materially impair the ability of the Company or
the Guarantors to perform their respective obligations under the
Transaction Documents.
(n) Arthur Andersen LLP are independent certified public accountants
with respect to Tower and its subsidiaries within the meaning of Rule 101
of the Code of Professional Conduct of the American Institute of Certified
Public Accountants ("AICPA") and its interpretations and rulings
thereunder. The historical financial statements (including the related
notes) contained in the Offering Memorandum comply in all material respects
with the requirements applicable to a registration statement on Form S-3
under the Securities Act (except that certain supporting schedules are
omitted); such financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied throughout
the periods covered thereby and
-5-
<PAGE> 6
fairly present the financial position of the entities purported to be
covered thereby at the respective dates indicated and the results of their
operations and their cash flows for the respective periods indicated; and
the financial information contained in the Offering Memorandum under the
headings "Offering Memorandum Summary--Summary Historical and Pro Forma
Financial Data," "Capitalization," "Selected Consolidated Financial Data,"
"Management's Discussion and Analysis of Results of Operations and
Financial Condition" and "Management--Executive Compensation" are derived
from the accounting records of Tower and its subsidiaries and fairly
present the information purported to be shown thereby. The pro forma
financial information contained in the Offering Memorandum has been
prepared on a basis consistent with the historical financial statements
contained in the Offering Memorandum (except for the pro forma adjustments
specified therein), includes all material adjustments to the historical
financial information required by Rule 11-02 of Regulation S-X under the
Securities Act and the Exchange Act to reflect the transactions described
in the Offering Memorandum, gives effect to assumptions made on a
reasonable basis and fairly presents the historical and proposed
transactions contemplated by the Offering Memorandum and the Transaction
Documents. The other historical financial and statistical information and
data included in the Offering Memorandum are, in all material respects,
fairly presented.
(o) Except as set forth in the Offering Memorandum, there are no legal
or governmental proceedings pending to which Tower or any of its
subsidiaries is a party or of which any property or assets of Tower or any
of its subsidiaries is the subject which, singularly or in the aggregate,
if determined adversely to Tower or any of its subsidiaries, could
reasonably be expected to have a Material Adverse Effect; and to the best
knowledge of Tower, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(p) To the best knowledge of Tower, no action has been taken and no
statute, rule, regulation or order has been enacted, adopted or issued by
any governmental agency or body that prevents the issuance of the
Securities or suspends the sale of the Securities in any jurisdiction; no
injunction, restraining order or order of any nature by any federal or
state court of competent jurisdiction has been issued with respect to Tower
or any of its subsidiaries that would prevent or suspend the issuance or
sale of the Securities or the use of the Preliminary Offering Memorandum or
the Offering Memorandum in any jurisdiction; no action, suit or proceeding
is pending against or, to the best knowledge of the Company, threatened
against or affecting Tower or any of its subsidiaries before any court or
arbitrator or any governmental agency, body or official, domestic or
foreign, which could reasonably be expected to interfere with or adversely
affect the issuance of the Securities or in any manner draw into question
the validity or enforceability of any of the Transaction Documents or any
action taken or to be taken pursuant thereto; and the Company has complied
with any and all requests by any securities authority in any jurisdiction
for additional information to be included in the Preliminary Offering
Memorandum and the Offering Memorandum
-6-
<PAGE> 7
(q) Neither Tower nor any of its subsidiaries is (i) in violation of
its charter or by-laws, (ii) in default in any material respect, and no
event has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any
term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other material agreement or instrument to which it
is a party or by which it is bound or to which any of its property or
assets is subject or (iii) in violation of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets may
be subject, except in each case, any such violation, default or conflict
that would not, individually or in the aggregate have a Material Adverse
Effect.
(r) Tower and each of its subsidiaries possess all material licenses,
certificates, authorizations and permits issued by, and have made all
declarations and filings with, the appropriate federal, state or foreign
regulatory agencies or bodies which are necessary or desirable for the
ownership of their respective properties or the conduct of their respective
businesses as described in the Offering Memorandum, except where the
failure to possess or make the same would not, singularly or in the
aggregate, have a Material Adverse Effect, and neither Tower nor any of its
subsidiaries has received notification of any revocation or modification of
any such license, certificate, authorization or permit or has any reason to
believe that any such license, certificate, authorization or permit will
not be renewed in the ordinary course.
(s) Neither Tower nor any of its subsidiaries is and, after giving
effect to the offering and sale of the Securities and the application of
the net proceeds as described in the Offering Memorandum, will be (i) an
"investment company" or a company "controlled by" an investment company
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and the rules and regulations of the Commission
thereunder or (ii) a "holding company" or a "subsidiary company" of a
holding company or an "affiliate" thereof within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
(t) Tower and each of its subsidiaries maintain reasonably adequate
insurance.
(u) Tower and each of its subsidiaries own or possess adequate rights
to use all patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service mark registrations, copyrights,
licenses and know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of their respective businesses, the
failure of which to own or possess would result in a Material Adverse
Effect; and the conduct of their respective businesses will not conflict in
any respect with, and Tower and its subsidiaries have not received any
notice of any claim of conflict with, any such rights of others, other than
such conflicts that would result in a National Adverse Effect.
-7-
<PAGE> 8
(v) Except as described in the Offering Memorandum, Tower and each of
its subsidiaries have good and marketable title in fee simple to, or have
valid rights to lease or otherwise use, all items of real and personal
property which are material to the business of Tower and its subsidiaries,
in each case free and clear of all liens, encumbrances, claims and defects
and imperfections of title except such as (i) do not materially interfere
with the use made and proposed to be made of such property by Tower and its
subsidiaries or (ii) could not reasonably be expected to have a Material
Adverse Effect.
(w) No labor disturbance by or dispute with the employees of Tower or
any of its subsidiaries exists or, to the best knowledge of Tower or the
Company, is contemplated or threatened; and neither Tower nor any of its
subsidiaries is aware of any existing, imminent or threatened disturbance
by the employees of any principal supplier, manufacturer or contractor that
could reasonably be expected to result in a Material Adverse Effect.
(x) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission or other release of any kind of
toxic or other wastes or other hazardous substances by, due to or caused by
Tower or any of its subsidiaries (or, to the best knowledge of Tower, any
other entity (including any predecessor) for whose acts or omissions Tower
or any of its subsidiaries is or could reasonably be expected to be liable)
upon any of the property now or previously owned or leased by Tower or any
of its subsidiaries, or upon any other property, in violation of any
statute or any ordinance, rule, regulation, order, judgment, decree or
permit or which would, under any statute or any ordinance, rule (including
rule of common law), regulation, order, judgment, decree or permit, give
rise to any liability, except for any violation or liability that could not
reasonably be expected to have, singularly or in the aggregate with all
such violations and liabilities, a Material Adverse Effect; and there has
been no disposal, discharge, emission or other release of any kind onto
such property or into the environment surrounding such property of any
toxic or other wastes or other hazardous substances with respect to which
Tower has knowledge, except for any such disposal, discharge, emission or
other release of any kind that could not reasonably be expected to have,
singularly or in the aggregate with all such discharges and other releases,
a Material Adverse Effect.
(y) Except as disclosed in the Offering Memorandum, neither Tower nor
any of its subsidiaries is a party to any contract, agreement or
understanding with any person that would give rise to a valid claim against
the Company, the Guarantors or the Initial Purchasers for a brokerage
commission, finder's fee or like payment in connection with the offering
and sale of the Securities.
(z) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(aa) None of the Company, the Guarantors or any of their affiliates or
any person acting on its or their behalf has engaged or will engage in any
directed selling
-8-
<PAGE> 9
efforts (as such term is defined in Regulation S under the Securities Act
("Regulation S")), and all such persons have complied and will comply with
the offering restrictions requirement of Regulation S to the extent
applicable.
(bb) None of the Company, the Guarantors or any of their affiliates
has, directly or through any agent, sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any security (as such
term is defined in the Securities Act), which is or will be integrated with
the sale of the Securities in a manner that would require registration of
the Securities under the Securities Act.
(cc) None of the Company, the Guarantors or any of their affiliates or
any other person acting on its or their behalf has engaged, in connection
with the offering of the Securities, in any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the Securities
Act.
(dd) Tower has filed all reports required to be filed by it under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(ee) The Company and the Guarantors have not taken and will not take,
directly or indirectly, any action prohibited by Regulation M under the
Exchange Act in connection with the offering of the Securities.
(ff) No forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act) contained in the
Preliminary Offering Memorandum or the Offering Memorandum has been made or
reaffirmed without a reasonable basis or has been disclosed other than in
good faith.
(gg) None of Tower or any of its subsidiaries does business with the
government of Cuba or with any person or affiliate located in Cuba within
the meaning of Florida Statutes Section 517.075.
(hh) Since the date as of which information is given in the Offering
Memorandum, except as otherwise stated therein, (i) there has been no
material adverse change or any development involving a prospective material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs, management or business prospects of the Company
and its subsidiaries or Tower and its subsidiaries, in each case taken as a
whole, whether or not arising in the ordinary course of business, (ii)
neither the Company or the Guarantors have incurred any material liability
or obligation, direct or contingent, other than in the ordinary course of
business, (iii) neither the Company nor the Guarantors have entered into
any material transaction other than in the ordinary course of business and
(iv) there has not been any material change in the capital stock or
long-term debt of Tower or the Company, or any dividend or distribution of
any kind declared, paid or made by Tower on any class of its capital stock.
2. Purchase and Resale of the Securities. (a) On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and
-9-
<PAGE> 10
conditions set forth herein, the Company agrees to issue and sell to
each of the Initial Purchasers, severally and not jointly, and each of the
Initial Purchasers, severally and not jointly, agrees to purchase from the
Company, the principal amount of Notes set forth opposite the name of such
Initial Purchaser on Schedule 1 hereto at a purchase price equal to 98.5% of the
principal amount thereof. The Company shall not be obligated to deliver any of
the Notes except upon payment for all of the Notes to be purchased as provided
herein.
(b) The Initial Purchasers have advised the Company and the Guarantors
that they propose to offer the Securities for resale upon the terms and
subject to the conditions set forth herein and in the Offering Memorandum.
Each Initial Purchaser, severally and not jointly, represents, warrants and
agrees that (i) it is purchasing the Securities pursuant to a private sale
exempt from registration under the Securities Act, (ii) it has not
solicited offers for, or offered or sold, and will not solicit offers for,
or offer or sell, the Securities by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) of
Regulation D under the Securities Act ("Regulation D") or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act and (iii) it has solicited and will solicit offers for the
Securities only from, and has offered or sold and will offer, sell or
deliver the Securities, as part of their initial offering, only (A) within
the United States to persons whom it reasonably believes to be qualified
institutional buyers ("Qualified Institutional Buyers"), as defined in Rule
144A under the Securities Act ("Rule 144A"), or if any such person is
buying for one or more institutional accounts for which such person is
acting as fiduciary or agent, only when such person has represented to it
that each such account is a Qualified Institutional Buyer to whom notice
has been given that such sale or delivery is being made in reliance on Rule
144A and in each case, in transactions in accordance with Rule 144A and (B)
outside the United States to persons other than U.S. persons in reliance on
Regulation S under the Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance on
Regulation S, each Initial Purchaser, severally and not jointly,
represents, warrants and agrees that:
(i) The Securities have not been registered under the Securities
Act and may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons except pursuant to an
exemption from, or in transactions not subject to, the registration
requirements of the Securities Act.
(ii) Such Initial Purchaser has offered and sold the Securities,
and will offer and sell the Securities, (A) as part of their
distribution at any time and (B) otherwise until 40 days after the
later of the commencement of the offering of the Securities and the
Closing Date, only in accordance with Regulation S or Rule 144A or any
other available exemption from registration under the Securities Act.
(iii) None of such Initial Purchaser or any of its affiliates or
any other person acting on its or their behalf has engaged or will
engage in any directed selling
-10-
<PAGE> 11
efforts with respect to the Securities, and all such persons have
complied and will comply with the offering restrictions requirement of
Regulation S.
(iv) at or prior to the confirmation of sale of any Securities
sold in reliance on Regulation S, it will have sent to each
distributor, dealer or other person receiving a selling concession,
fee or other remuneration that purchase Securities from it during the
restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933, as amended (the "Securities Act"),
and may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the commencement of the offering of the Securities
and the date of original issuance of the Securities, except in
accordance with Regulation S or Rule 144A or any other available
exemption from registration under the Securities Act. Terms used
above have the meanings given to them by Regulation S."
(v) it has not and will not enter into any contractual
arrangement with any distributor with respect to the distribution of
the Securities, except with its affiliates or with the prior written
consent of the Company.
Terms used in this Section 2(c) have the meanings given to them by
Regulation S.
(d) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that (i) it has not offered or sold and prior to the
date six months after the Closing Date will not offer or sell any
Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995; (ii) it has
complied and will comply with all applicable provisions of the Financial
Services Act 1986 and the Public Offers of Securities Regulations 1995 with
respect to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom; and (iii) it has only issued or
passed on and will only issue or pass on in the United Kingdom any document
received by it in connection with the issue of the Securities to a person
who is of a kind described in Article 11(3) of the Financial Services Act
1986 (Investment Advertisements) (Exemptions) Order 1996 or is a person to
whom such document may otherwise lawfully be issued or passed on.
(e) Each Initial Purchaser, severally and not jointly, agrees that,
prior to or simultaneously with the confirmation of sale by such Initial
Purchaser to any purchaser of any of the Securities purchased by such
Initial Purchaser from the Company and the Guarantors pursuant hereto, such
Initial Purchaser shall furnish to that purchaser a copy
-11-
<PAGE> 12
of the Offering Memorandum (and any amendment or supplement thereto that
the Company and the Guarantors shall have furnished to such Initial
Purchaser prior to the date of such confirmation of sale). In addition to
the foregoing, each Initial Purchaser acknowledges and agrees that the
Company and the Guarantors and, for purposes of the opinions to be
delivered to the Initial Purchasers pursuant to Sections 5(d) and (e),
counsel for the Company and the Guarantors and for the Initial Purchasers,
respectively, may rely upon the accuracy of the representations and
warranties of the Initial Purchasers and their compliance with their
agreements contained in this Section 2, and each Initial Purchaser hereby
consents to such reliance.
(f) The Company and the Guarantors acknowledge and agree that the
Initial Purchasers may sell Securities to any affiliate of an Initial
Purchaser and that any such affiliate may sell Securities purchased by it
to an Initial Purchaser.
3. Delivery of and Payment for the Securities. (a) Delivery of and
payment for the Securities shall be made at the offices of Gardner, Carton &
Douglas, 321 North Clark Street, Chicago, Illinois 60610, or at such other place
as shall be agreed upon by the Initial Purchasers and the Company, at 10:00
A.M., New York City time, on July 25, 2000, or at such other time or date, not
later than seven full business days thereafter, as shall be agreed upon by the
Initial Purchasers and the Company (such date and time of payment and delivery
being referred to herein as the "Closing Date").
(b) On the Closing Date, payment of the purchase price for the
Securities shall be made to the Company by wire or book-entry transfer of
same-day funds to such account or accounts as the Company shall specify
prior to the Closing Date or by such other means as the parties hereto
shall agree prior to the Closing Date against delivery to the Initial
Purchasers of the certificates evidencing the Securities. Time shall be of
the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligations of the Initial
Purchasers hereunder. Upon delivery, the Securities shall be in global
form, registered in such names and in such denominations as CMIL on behalf
of the Initial Purchasers shall have requested in writing not less than two
full business days prior to the Closing Date. The Company and the
Guarantors agree to make one or more global certificates evidencing the
Securities available for inspection by CMIL on behalf of the Initial
Purchasers at least 24 hours prior to the Closing Date.
4. Further Agreements of the Company. The Company and each of the
Guarantors agree with each of the several Initial Purchasers:
(a) to advise the Initial Purchasers promptly and, if requested,
confirm such advice in writing, of the happening of any event that makes
any statement of a material fact made in the Offering Memorandum untrue or
that requires the making of any additions to or changes in the Offering
Memorandum (as amended or supplemented from time to time) in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; to advise the Initial Purchasers promptly of any
order preventing or suspending the use of the Preliminary Offering
Memorandum or the Offering Memorandum, of any suspension of the
qualification of the Securities for
-12-
<PAGE> 13
offering or sale in any jurisdiction and of the initiation or threatening
of any proceeding for any such purpose; and to use its reasonable best
efforts to prevent the issuance of any such order preventing or suspending
the use of the Preliminary Offering Memorandum or the Offering Memorandum
or suspending any such qualification and, if any such suspension is issued,
to obtain the lifting thereof at the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and counsel
for the Initial Purchasers, without charge, as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum as may
reasonably be requested prior to the Closing Date and any amendments or
supplements thereto made to the Offering Memorandum after the Closing Date
as may be reasonably requested;
(c) prior to making any amendment or supplement to the Offering
Memorandum, to furnish a copy thereof to each of the Initial Purchasers and
counsel for the Initial Purchasers and not to effect any such amendment or
supplement to which the Initial Purchasers shall reasonably object by
notice to the Company after a reasonable period to review;
(d) if, at any time prior to completion of the resale of the
Securities by the Initial Purchasers, any event shall occur or condition
exist as a result of which it is necessary, in the opinion of counsel for
the Initial Purchasers or counsel for the Company and the Guarantors, to
amend or supplement the Offering Memorandum in order that the Offering
Memorandum will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances existing at the time it is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement the
Offering Memorandum to comply with applicable law, to promptly prepare such
amendment or supplement as may be necessary to correct such untrue
statement or omission or so that the Offering Memorandum, as so amended or
supplemented, will comply with applicable law;
(e) for so long as the Securities are outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act,
to furnish to holders of the Securities and prospective purchasers of the
Securities designated by such holders, upon request of such holders or such
prospective purchasers, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act, unless Tower is then subject
to and in compliance with Section 13 or 15(d) of the Exchange Act the
foregoing agreement being for the benefit of the holders from time to time
of the Securities and prospective purchasers of the Securities designated
by such holders);
(f) for so long as the Securities are outstanding, to furnish to the
Initial Purchasers upon request copies of any annual reports, quarterly
reports and current reports filed by Tower or the Company with the
Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may
be designated by the Commission, and such other documents, reports and
information as shall be furnished by Tower or the Company to the
-13-
<PAGE> 14
Trustee or to the holders of the Securities pursuant to the Indenture or
the Exchange Act or any rule or regulation of the Commission thereunder;
(g) to promptly take from time to time such actions as the Initial
Purchasers may reasonably request to qualify the Securities for offering
and sale under the securities or Blue Sky laws of such jurisdictions as the
Initial Purchasers may designate and to continue such qualifications in
effect for so long as required for the resale of the Securities; and to
arrange for the determination of the eligibility for investment of the
Securities under the laws of such jurisdictions as the Initial Purchasers
may reasonably request; provided that the Company and its subsidiaries
shall not be obligated to qualify as foreign corporations in any
jurisdiction in which they are not so qualified or to file a general
consent to service of process in any jurisdiction;
(h) not to, and to cause its affiliates not to, sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any security
(as such term is defined in the Securities Act) that could be integrated
with the sale of the Securities in a manner that would require registration
of the Securities under the Securities Act;
(i) except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may
be, not to, and to cause its affiliates not to, and not to authorize or
knowingly permit any person acting on their behalf to, solicit any offer to
buy or offer to sell the Securities by means of any form of general
solicitation or general advertising within the meaning of Regulation D or
in any manner involving a public offering within the meaning of Section
4(2) of the Securities Act; and not to offer, sell, contract to sell or
otherwise dispose of, directly or indirectly, any securities under
circumstances where such offer, sale, contract or disposition would cause
the exemption afforded by Section 4(2) of the Securities Act to cease to be
applicable to the offering and sale of the Securities as contemplated by
this Agreement and the Offering Memorandum;
(j) for a period of 180 days from the date of the Offering Memorandum,
not to offer for sale, sell, contract to sell or otherwise dispose of,
directly or indirectly, or file a registration statement for, or announce
any offer, sale, contract for sale of or other disposition of any debt
securities issued or guaranteed by the Company or any of its subsidiaries
(other than the Securities) without the prior written consent of CMIL;
(k) during the period from the Closing Date until two years after the
Closing Date, without the prior written consent of the Initial Purchasers,
not to, and use its reasonable best efforts not to permit any of its
affiliates (as defined in Rule 144 under the Securities Act) to, resell any
of the Securities that have been reacquired by them, except for Securities
purchased by the Company, Tower or any of their affiliates and resold in a
transaction registered under the Securities Act or otherwise exempt from
the registration requirements of the Securities Act;
-14-
<PAGE> 15
(l) not to, for so long as the Securities are outstanding, be or
become, or be or become owned by, an open-end investment company, unit
investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the Investment Company Act, and to not
be or become, or be or become owned by, a closed-end investment company
required to be registered, but not registered thereunder;
(m) in connection with the offering of the Securities, until CMIL on
behalf of the Initial Purchasers shall have notified the Company of the
completion of the resale of the Securities, not to, and to use its
reasonable best efforts to cause its affiliated purchasers (as defined in
Regulation M under the Exchange Act) not to, either alone or with one or
more other persons, bid for or purchase, for any account in which it or any
of its affiliated purchasers has a beneficial interest, any Securities, or
attempt to induce any person to purchase any Securities; and not to, and to
cause its affiliated purchasers not to, make bids or purchase for the
purpose of creating actual, or apparent, active trading in or of raising
the price of the Securities;
(n) in connection with the offering of the Securities, to make its
officers, employees, independent accountants and legal counsel reasonably
available upon request by the Initial Purchasers;
(o) for so long as the Securities are outstanding, to file promptly
all reports required by Tower to be filed under the Exchange Act;
(p) to do and perform all things required to be done and performed by
it under this Agreement that are within its control prior to or after the
Closing Date, and to use its reasonable best efforts to satisfy all
conditions precedent on its part to the delivery of the Securities;
(q) to not take any action prior to the execution and delivery of the
Indenture which, if taken after such execution and delivery, would have
violated any of the covenants contained in the Indenture;
(r) to not take any action prior to the Closing Date which would
require the Offering Memorandum to be amended or supplemented pursuant to
Section 4(d);
(s) prior to the Closing Date, not to issue any press release or other
communication directly or indirectly or hold any press conference with
respect to the Company, the Guarantors, their condition, financial or
otherwise, or earnings, business affairs or business prospects (except for
routine oral marketing communications in the ordinary course of business
and consistent with the past practices of the Company and Tower and of
which the Initial Purchasers are notified), without the prior written
consent of the Initial Purchasers, unless in the judgment of the Company,
the Guarantors and their counsel, and after notification to the Initial
Purchasers, such press release or communication is required by law;
-15-
<PAGE> 16
(t) to apply the net proceeds from the sale of the Securities as set
forth in the Offering Memorandum under the heading "Use of Proceeds;" and
(u) to use their reasonable best efforts to cause the Securities to be
listed on the Luxembourg Stock Exchange.
5. Conditions of Initial Purchasers' Obligations. The respective
obligations of the several Initial Purchasers hereunder are subject to the
accuracy, on and as of the date hereof and the Closing Date, of the
representations and warranties of the Company and the Guarantors contained
herein, to the accuracy of the statements of the Company and the Guarantors and
their respective officers made in any certificates delivered pursuant hereto, to
the performance by the Company and the Guarantors of their respective
obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Offering Memorandum (and any amendments or supplements
thereto) shall have been printed and copies distributed to the Initial
Purchasers as promptly as reasonably practicable on or following the date
of this Agreement or at such other date and time as to which the Initial
Purchasers may agree; and no stop order suspending the sale of the
Securities in any jurisdiction shall have been issued and no proceeding for
that purpose shall have been commenced or shall be pending or threatened.
(b) None of the Initial Purchasers shall have discovered and disclosed
to the Company on or prior to the Closing Date that the Offering Memorandum
or any amendment or supplement thereto contains an untrue statement of a
fact which, in the opinion of counsel for the Initial Purchasers, is
material or omits to state any fact which, in the opinion of such counsel,
is material and is required to be stated therein or is necessary to make
the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of the Transaction Documents and
the Offering Memorandum, and all other legal matters relating to the
Transaction Documents and the transactions contemplated thereby, shall be
satisfactory in all material respects to the Initial Purchasers, and the
Company and the Guarantors shall have furnished to the Initial Purchasers
all documents and information that they or their counsel may reasonably
request to enable them to pass upon such matters.
(d) Kirkland & Ellis shall have furnished to the Initial Purchasers
their written opinion, as counsel to the Company and the Guarantors,
addressed to the Initial Purchasers and dated the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchasers, substantially
to the effect set forth in Annex B hereto.
(e) The Initial Purchasers shall have received from Gardner, Carton &
Douglas, counsel for the Initial Purchasers, such opinion or opinions,
dated the Closing Date, with respect to such matters as the Initial
Purchasers may reasonably require, and the Company and the Guarantors shall
have furnished to such counsel such documents
-16-
<PAGE> 17
and information as they request for the purpose of enabling them to pass
upon such matters.
(f) The Company and the Guarantors shall have furnished to the Initial
Purchasers a letter (the "Initial Letter") of Arthur Andersen LLP,
addressed to the Initial Purchasers and dated the date hereof, in form and
substance satisfactory to the Initial Purchasers, substantially to the
effect set forth in Annex C hereto.
(g) The Company and the Guarantors shall have furnished to the Initial
Purchasers a letter (the "Bring-Down Letter") of Arthur Andersen LLP,
addressed to the Initial Purchasers and dated the Closing Date (i)
confirming that they are independent public accountants with respect to
Tower and its subsidiaries within the meaning of Rule 101 of the Code of
Professional Conduct of the AICPA and its interpretations and rulings
thereunder, (ii) stating, as of the date of the Bring-Down Letter (or, with
respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Offering
Memorandum, as of a date not more than three business days prior to the
date of the Bring-Down Letter), that the conclusions and findings of such
accountants with respect to the financial information and other matters
covered by the Initial Letter are accurate and (iii) confirming in all
material respects the conclusions and findings set forth in the Initial
Letter.
(h) The Company shall have furnished to the Initial Purchasers a
certificate, dated the Closing Date, of its chief executive officer and its
chief financial officer stating that as of the Closing Date, the
representations and warranties of the Company and the Guarantors in this
Agreement are true and correct in all material respects, the Company and
the Guarantors have complied in all material respects with all agreements
and satisfied all conditions on their part to be performed or satisfied
hereunder on or prior to the Closing Date, and subsequent to the date of
the most recent financial statements contained in the Offering Memorandum,
there has been no material adverse change in the financial position or
results of operation of Tower or any of its subsidiaries or the Company and
any of its subsidiaries, or any change, or any development including a
prospective change, in or affecting the condition (financial or otherwise),
results of operations, business or prospects of Tower and its subsidiaries
or the Company and its subsidiaries, in each case taken as a whole, except
as set forth in the Offering Memorandum.
(i) The Initial Purchasers shall have received a counterpart of the
Registration Rights Agreement which shall have been executed and delivered
by a duly authorized agent of the Company and each of the Guarantors.
(j) The Indenture shall have been duly executed and delivered by the
Company, the Guarantors and the Trustee, and the Securities shall have been
duly executed and delivered by the Company and the Guarantors and duly
authenticated by the Trustee.
-17-
<PAGE> 18
(k) An application shall have been made for listing the Securities on
the Luxembourg Stock Exchange.
(l) If any event shall have occurred that requires the Company and the
Guarantors under Section 4(d) to prepare an amendment or supplement to the
Offering Memorandum, such amendment or supplement shall have been prepared,
the Initial Purchasers shall have been given a reasonable opportunity to
comment thereon, and copies thereof shall have been delivered to the
Initial Purchasers reasonably in advance of the Closing Date.
(m) There shall not have occurred any invalidation of Rule 144A under
the Securities Act by any court or any withdrawal or proposed withdrawal of
any rule or regulation under the Securities Act or the Exchange Act by the
Commission or any amendment or proposed amendment thereof by the Commission
which in the judgment of the Initial Purchasers would materially impair the
ability of the Initial Purchasers to purchase, hold or effect resales of
the Securities as contemplated hereby.
(n) Subsequent to the execution and delivery of this Agreement, there
shall not have been any change in the capital stock or long-term debt or
any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), results of operations,
business or prospects of Tower and its subsidiaries or the Company and its
subsidiaries, in each case taken as a whole, the effect of which, in any
such case described above, is, in the judgment of the Initial Purchasers,
so material and adverse as to make it impracticable or inadvisable to
proceed with the sale or delivery of the Securities on the terms and in the
manner contemplated by this Agreement and the Offering Memorandum
(exclusive of any amendment or supplement thereto).
(o) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the issuance or
sale of the Securities; and no injunction, restraining order or order of
any other nature by any federal or state court of competent jurisdiction
shall have been issued as of the Closing Date which would prevent the
issuance or sale of the Securities.
(p) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Securities or
any of the other debt securities or preferred stock of Tower or the Company
by any "nationally recognized statistical rating organization," as such
term is defined by the Commission for purposes of Rule 436(g)(2) of the
rules and regulations of the Commission under the Securities Act and (ii)
no such organization shall have publicly announced that it has under
surveillance or review (other than an announcement with positive
implications of a possible upgrading), its rating of the Securities or any
of the other debt securities or preferred stock of Tower or the Company.
-18-
<PAGE> 19
(q) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or
the over-the-counter market shall have been suspended or limited, or
minimum prices shall have been established on any such exchange or market
by the Commission, by any such exchange or by any other regulatory body or
governmental authority having jurisdiction, or trading in any securities of
Tower or the Company on any exchange or in the over-the-counter market
shall have been suspended or (ii) any moratorium on commercial banking
activities shall have been declared by federal or New York state or
European Union authorities or (iii) an outbreak or escalation of
hostilities or a declaration by the United States or the European Union of
a national emergency or war or (iv) a material adverse change in general
economic, political or financial conditions (or the effect of international
conditions on the financial markets in the United States or the European
Union shall be such) the effect of which, in the case of this clause (iv),
is, in the judgment of the Initial Purchasers, so material and adverse as
to make it impracticable or inadvisable to proceed with the sale or the
delivery of the Securities on the terms and in the manner contemplated by
this Agreement and in the Offering Memorandum (exclusive of any amendment
or supplement thereto).
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchasers.
6. Termination. The obligations of the Initial Purchasers hereunder
may be terminated by the Initial Purchasers, in their absolute discretion, by
notice given to and received by the Company prior to delivery of and payment for
the Securities if, prior to that time, any of the events described in Section
5(m), (n), (o), (p) or (q) shall have occurred and be continuing.
7. Defaulting Initial Purchasers. (a) If, on the Closing Date, any
Initial Purchaser defaults in the performance of its obligations under this
Agreement, the non-defaulting Initial Purchasers may make arrangements for the
purchase of the Securities that such defaulting Initial Purchaser agreed but
failed to purchase by other persons satisfactory to the Company, the Guarantors
and the non-defaulting Initial Purchasers, but if no such arrangements are made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of the non-defaulting Initial Purchasers or the Company or
the Guarantors, except that the Company and the Guarantors will continue to be
liable for the payment of expenses to the extent set forth in Sections 8 and 12
and except that the provisions of Sections 9 and 10 shall not terminate and
shall remain in effect. As used in this Agreement, the term "Initial Purchasers"
includes, for all purposes of this Agreement unless the context otherwise
requires, any party not listed in Schedule 1 hereto that, pursuant to this
Section 7, purchases Securities which a defaulting Initial Purchaser agreed but
failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Company or the Guarantors or any
non-defaulting Initial Purchaser for damages caused by its default. If other
persons are obligated or agree to purchase the Securities of a defaulting
Initial Purchaser, either the non-defaulting Initial Purchasers or the Company
may
-19-
<PAGE> 20
postpone the Closing Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company and the
Guarantors or counsel for the Initial Purchasers may be necessary in the
Offering Memorandum or in any other document or arrangement, and the Company
agrees to promptly prepare any amendment or supplement to the Offering
Memorandum that effects any such changes.
8. Reimbursement of Initial Purchasers' Expenses. If (a) this
Agreement shall have been terminated pursuant to Section 6 (other than pursuant
to Section 5(q)), (b) the Company shall fail to tender the Securities for
delivery to the Initial Purchasers for any reason permitted under this Agreement
or (c) the Initial Purchasers shall decline to purchase the Securities for any
reason permitted under this Agreement, the Company and the Guarantors, jointly
and severally, shall reimburse the Initial Purchasers for such out-of-pocket
expenses (including reasonable fees and disbursements of counsel) as shall have
been reasonably incurred by the Initial Purchasers in connection with this
Agreement and the proposed purchase and resale of the Securities. If this
Agreement is terminated pursuant to Section 7 by reason of the default of one or
more of the Initial Purchasers, the Company and the Guarantors shall not be
obligated to reimburse any defaulting Initial Purchaser on account of such
expenses.
9. Indemnification. (a) Each of the Company and the Guarantors shall,
jointly and severally, indemnify and hold harmless each Initial Purchaser, its
affiliates, their respective officers, directors, employees, representatives and
agents, and each person, if any, who controls any Initial Purchaser within the
meaning of the Securities Act or the Exchange Act (collectively referred to for
purposes of this Section 9(a) and Section 10 as an Initial Purchaser), from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, without limitation, any loss, claim, damage,
liability or action relating to purchases and sales of the Securities), to which
that Initial Purchaser may become subject, whether commenced or threatened,
under the Securities Act, the Exchange Act, any other federal or state statutory
law or regulation, at common law or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum or the Offering Memorandum or in any amendment
or supplement thereto or in any information provided by the Company or Tower
pursuant to Section 4(e) or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and shall reimburse each Initial Purchaser promptly
upon demand for any legal or other expenses reasonably incurred by that Initial
Purchaser in connection with investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company and the Guarantors shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in
conformity with any Initial Purchasers' Information; and provided, further, that
with respect to any such untrue statement in or omission from the Preliminary
Offering Memorandum, the indemnity agreement contained in this Section 9(a)
shall not inure to the benefit of any such Initial Purchaser to the extent that
the sale to the person
-20-
<PAGE> 21
asserting any such loss, claim, damage, liability or action was an initial
resale by such Initial Purchaser and any such loss, claim, damage, liability or
action of or with respect to such Initial Purchaser results from the fact that
both (A) to the extent required by applicable law, a copy of the Offering
Memorandum was not sent or given to such person at or prior to the written
confirmation of the sale of such Securities to such person and (B) the untrue
statement in or omission from the Preliminary Offering Memorandum was corrected
in the Offering Memorandum unless, in either case, such failure to deliver the
Offering Memorandum was a result of non-compliance by the Company or the
Guarantors with Section 4(b).
(b) Each Initial Purchaser, severally and not jointly, shall indemnify
and hold harmless the Company and the Guarantors, their affiliates, their
respective officers, directors, employees, representatives and agents, and each
person, if any, who controls the Company or the Guarantors within the meaning of
the Securities Act or the Exchange Act (the Company, the Guarantors, their
affiliates and respective officers, directors, employees, representatives and
agents, and each such person who controls the Company or the Guarantors shall be
collectively referred to for purposes of this Section 9(b) and Section 10 as the
Company), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company may become
subject, whether commenced or threatened, under the Securities Act, the Exchange
Act, any other federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Preliminary Offering Memorandum or the Offering
Memorandum or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with any Initial
Purchasers' Information furnished by such Initial Purchaser, and shall reimburse
the Company for any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
9 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 9(a) or 9(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability that it may have under this Section 9 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and, provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability that it
may have to an indemnified party otherwise than under this Section 9. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not
-21-
<PAGE> 22
be liable to the indemnified party under this Section 9 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided, however,
that an indemnified party shall have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 9(a) and 9(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party (which
consent shall not be unreasonably withheld), effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject
matter of such proceeding.
The obligations of the Company, the Guarantors and the Initial
Purchasers in this Section 9 and in Section 10 are in addition to any other
liability that the Company, the Guarantors or the Initial Purchasers, as the
case may be, may otherwise have, including in respect of any breaches of
representations, warranties and agreements made herein by any such party.
10. Contribution. If the indemnification provided for in Section 9 is
unavailable or insufficient to hold harmless an indemnified party under Section
9(a) or 9(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Initial Purchasers on
the other from the offering of the Securities or (ii) if the allocation provided
by clause (i) above is not
-22-
<PAGE> 23
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Initial Purchasers on the other
with respect to the statements or omissions that resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Initial Purchasers on the other with respect to such offering
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Securities purchased under this Agreement (before deducting
expenses) received by or on behalf of the Company, on the one hand, and the
total discounts and commissions received by the Initial Purchasers with respect
to the Securities purchased under this Agreement, on the other, bear to the
total gross proceeds from the sale of the Securities under this Agreement. 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 the Company or information
supplied by the Company on the one hand or to any Initial Purchasers'
Information on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Initial Purchasers agree that
it would not be just and equitable if contributions pursuant to this Section 10
were to be determined by pro rata allocation (even if the Initial Purchasers
were treated as one entity for such purpose) or by any other method of
allocation that does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 10 shall be deemed to include, for purposes of this
Section 10, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending or preparing to defend any
such action or claim. Notwithstanding the provisions of this Section 10, no
Initial Purchaser shall be required to contribute any amount in excess of the
amount by which the total discounts and commissions received by such Initial
Purchaser with respect to the Securities purchased by it under this Agreement
exceeds the amount of any damages which such Initial Purchaser has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Initial Purchasers' obligations to contribute
as provided in this Section 10 are several in proportion to their respective
purchase obligations and not joint.
11. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchasers, the Company,
the Guarantors and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except as
provided in Sections 9 and 10 with respect to affiliates, officers, directors,
employees, representatives, agents and controlling persons of the Company, the
Guarantors and the Initial Purchasers and in Section 4(e) with respect to
holders and prospective purchasers of the Securities. Nothing in this Agreement
is intended or shall be construed to give any person, other than the persons
referred to in this Section 11, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
-23-
<PAGE> 24
12. Expenses. The Company and the Guarantors agree with the Initial
Purchasers to pay (a) the costs incident to the authorization, issuance, sale,
preparation and delivery of the Securities and any taxes payable in that
connection; (b) the costs incident to the preparation, printing and distribution
of the Preliminary Offering Memorandum, the Offering Memorandum and any
amendments or supplements thereto; (c) the costs of reproducing and distributing
each of the Transaction Documents; (d) the costs incident to the preparation,
printing and delivery of the certificates evidencing the Securities, including
stamp duties and transfer taxes, if any, payable upon issuance of the
Securities; (e) the fees and expenses of the Company's and the Guarantors'
counsel and independent accountants; (f) the fees and expenses of qualifying the
Securities under the securities laws of the several jurisdictions as provided in
Section 4(h) and of preparing, printing and distributing Blue Sky Memoranda
(including related fees and expenses of counsel for the Initial Purchasers); (g)
any fees charged by rating agencies for rating the Securities; (h) the fees and
expenses of the Trustee and any paying agent (including related fees and
expenses of any counsel to such parties); (i) all expenses and application fees
incurred in connection with the application for the inclusion of the Securities
on the Luxembourg Stock Exchange; and (j) all other costs and expenses incident
to the performance of the obligations of the Company and the Guarantors under
this Agreement which are not otherwise specifically provided for in this Section
12; provided, however, that except as provided in this Section 12 and Section 8,
the Initial Purchasers shall pay their own costs and expenses.
13. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, the Guarantors and
the Initial Purchasers contained in this Agreement or made by or on behalf of
the Company, the Guarantors or the Initial Purchasers pursuant to this Agreement
or any certificate delivered pursuant hereto shall survive the delivery of and
payment for the Securities and shall remain in full force and effect, regardless
of any termination or cancellation of this Agreement or any investigation made
by or on behalf of any of them or any of their respective affiliates, officers,
directors, employees, representatives, agents or controlling persons.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent by mail
or telecopy transmission to Chase Manhattan International Limited, 125
London Wall, London EC2Y 5AJ, England, Attention: Peter Hurd (telecopier
no.: 011-44-207-777-3271), with a copy to Chase Securities Inc., 270 Park
Avenue, New York, New York 10017, Attention: Dominick Petrosino (telecopier
no.: (212) 270-0994); or
(b) if to the Company or the Guarantors, shall be delivered or sent by
mail or telecopy transmission to the address of the Company set forth in
the Offering Memorandum, Attention: Daniel H. Webber (telecopier no.: (616)
802-1599);
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company and the Guarantors shall be entitled to act
and rely upon any request, consent, notice or agreement given or made on behalf
of the Initial Purchasers by CMIL.
-24-
<PAGE> 25
15. Definition of Terms. For purposes of this Agreement, (a) the term
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading, (b) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act and (c) except where otherwise expressly provided, the
term "affiliate" has the meaning set forth in Rule 405 under the Securities Act.
16. Initial Purchasers' Information. The parties hereto acknowledge
and agree that, for all purposes of this Agreement, the Initial Purchasers'
Information consists solely of the following information in the Preliminary
Offering Memorandum and the Offering Memorandum: the statements concerning the
Initial Purchasers contained in the eighth paragraph on page ii, first sentence
of the third paragraph and the ninth paragraph under the heading "Plan of
Distribution."
17. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
18. Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
19. Amendments. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
20. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
-25-
<PAGE> 26
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the several
Initial Purchasers in accordance with its terms.
Very truly yours,
R.J. TOWER CORPORATION
By /s/ Daniel H. Webber
-----------------------------------
Name: Daniel H. Webber
Title: Vice President
TOWER AUTOMOTIVE, INC.
By /s/ Daniel H. Webber
-----------------------------------
Name: Daniel H. Webber
Title: Vice President
TOWER AUTOMOTIVE PRODUCTS COMPANY, INC.
By /s/ Daniel H. Webber
-----------------------------------
Name: Daniel H. Webber
Title: Vice President
R.J. TOWER CORPORATION
By /s/ Daniel H. Webber
-----------------------------------
Name: Daniel H. Webber
Title: Vice President
R.J. TOWER CORPORATION
By /s/ Daniel H. Webber
-----------------------------------
Name: Daniel H. Webber
Title: Vice President
-26-
<PAGE> 27
TOWER AUTOMOTIVE DELAWARE, INC.
By /s/ Daniel H. Webber
--------------------------------
Name: Daniel H. Webber
Title: Vice President
KALAMAZOO STAMPING AND DIE COMPANY
By /s/ Daniel H. Webber
--------------------------------
Name: Daniel H. Webber
Title: Vice President
TOWER AUTOMOTIVE INTERNATIONAL
FUNDING, INC.
By /s/ Daniel H. Webber
--------------------------------
Name: Daniel H. Webber
Title: Vice President
TRYLON CORPORATION
By /s/ Daniel H. Webber
--------------------------------
Name: Daniel H. Webber
Title: Vice President
ACTIVE TOOL & MANUFACTURING CO., INC.
By /s/ Daniel H. Webber
--------------------------------
Name: Daniel H. Webber
Title: Vice President
ACTIVE PRODUCTS CORPORATION
By /s/ Daniel H. Webber
--------------------------------
Name: Daniel H. Webber
Title: Vice President
-27-
<PAGE> 28
TOWER AUTOMOTIVE SERVICES AND
TECHNOLOGY, INC.
By /s/ Daniel H. Webber
---------------------------------
Name: Daniel H. Webber
Title: Vice President
TOWER AUTOMOTIVE INTERNATIONAL, INC.
By /s/ Daniel H. Webber
---------------------------------
Name: Daniel H. Webber
Title: Vice President
TOWER AUTOMOTIVE INTERNATIONAL
HOLDINGS, INC.
By /s/ Daniel H. Webber
---------------------------------
Name: Daniel H. Webber
Title: Vice President
ALLGOODS USA, INC.
By /s/ Daniel H. Webber
---------------------------------
Name: Daniel H. Webber
Title: Vice President
-28-
<PAGE> 29
Accepted:
CHASE MANHATTAN INTERNATIONAL LIMITED
BANK OF AMERICA INTERNATIONAL LIMITED
FIRST CHICAGO LIMITED
DONALDSON, LUFKIN & JENRETTE INTERNATIONAL
SCOTIA CAPITAL (USA) INC.
ABN AMRO INCORPORATED
By: Chase Manhattan International Limited
By /s/ Signature illegible
-----------------------------------
Authorized Signatory
-29-
<PAGE> 30
SCHEDULE 1
Principal
Amount
Initial Purchasers of Securities
------------------ -------------
Chase Manhattan International Limited Euro52,500,000
Bank of America International Limited 52,500,000
Donaldson, Lufkin & Jenrette International 22,500,000
First Chicago Limited 7,500,000
Scotia Capital (USA) Inc. 7,500,000
ABN AMRO Incorporated 7,500,000
----------
Total Euro150,000,000
-30-
<PAGE> 31
ANNEX A
[Form of Exchange and Registration Rights Agreement]
-31-
<PAGE> 32
ANNEX B
[Form of Opinion of Counsel for the Company]
[To Come]
-32-
<PAGE> 33
ANNEX C
[Form of Initial Comfort Letter]
The Company shall have furnished to the Initial Purchasers a letter of
Arthur Andersen LLP, addressed to the Initial Purchasers and dated the date of
the Purchase Agreement, in form and substance satisfactory to the Initial
Purchasers, substantially to the effect set forth below:
(i) they are independent certified public accountants with respect to
the Company within the meaning of Rule 101 of the Code of Professional
Conduct of the AICPA and its interpretations and rulings;
(ii) in their opinion, the audited financial statements and pro forma
financial information included in the Offering Memorandum and reported on
by them comply in form in all material respects with the accounting
requirements of the Exchange Act and the related published rules and
regulations of the Commission thereunder that would apply to the Offering
Memorandum if the Offering Memorandum were a prospectus included in a
registration statement on [Form S-1] under the Securities Act (except that
certain supporting schedules are omitted);
(iii) based upon a reading of the latest unaudited financial
statements made available by the Company, the procedures of the AICPA for a
review of interim financial information as described in Statement of
Auditing Standards No. 71, reading of minutes and inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters and certain other limited procedures requested by the
Initial Purchasers and described in detail in such letter, nothing has come
to their attention that causes them to believe that (A) any unaudited
financial statements included in the Offering Memorandum do not comply as
to form in all material respects with applicable accounting requirements,
(B) any material modifications should be made to the unaudited financial
statements included in the Offering Memorandum for them to be in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements
included in the Offering Memorandum or (C) the information included under
the headings "Offering Memorandum Summary--Summary Historical and Pro Forma
Financial Data", "Capitalization", "Selected Consolidated Financial Data",
"Management's Discussion and Analysis of Results of Operations and
Financial Condition" and "Management--Executive Compensation" is not in
conformity with the disclosure requirements of Regulation S-K that would
apply to the Offering Memorandum if the Offering Memorandum were a
prospectus included in a registration statement on Form S-1 under the
Securities Act;
(iv) based upon the procedures detailed in such letter with respect to
the period subsequent to the date of the last available balance sheet,
including reading of minutes and inquiries of certain officials of the
Company who have responsibility for financial
-33-
<PAGE> 34
and accounting matters, nothing has come to their attention that causes
them to believe that (A) at a specified date not more than three business
days prior to the date of such letter, there was any change in capital
stock, increase in long-term debt or decrease in net current assets as
compared with the amounts shown in the March 31, 2000 unaudited balance
sheet included in the Offering Memorandum or (B) for the period from ,
199_ to a specified date not more than three business days prior to the
date of such letter, there were any decreases, as compared with the
corresponding period in the preceding year, in revenues, operating income,
EBITDA or net income, except in all instances for changes, increases or
decreases that the Offering Memorandum discloses have occurred or which are
set forth in such letter, in which case the letter shall be accompanied by
an explanation by the Company as to the significance thereof unless said
explanation is not deemed necessary by the Initial Purchasers;
(v) they have performed certain other specified procedures as a result
of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company) set forth in the Offering Memorandum agrees with the
accounting records of the Company, excluding any questions of legal
interpretation; and
(vi) on the basis of a reading of the unaudited pro forma financial
information included in the Offering Memorandum, carrying out certain
specified procedures, reading of minutes and inquiries of certain officials
of the Company who have responsibility for financial and accounting matters
and proving the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the pro forma financial
information, nothing came to their attention which caused them to believe
that the pro forma financial information does not comply in form in all
material respects with the applicable accounting requirements of Rule 11-02
of Regulation S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such information.
-34-
<PAGE> 35
-35-
