Exhibit 4.4
$120,000,000
WII COMPONENTS, INC.
10% SENIOR NOTES DUE 2012
PURCHASE AGREEMENT
February 12, 2004
CREDIT SUISSE FIRST BOSTON LLC,
As Representative of the Several Purchasers,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
1. INTRODUCTORY. WII Components, Inc., a Delaware corporation (the
"COMPANY"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule A hereto (the
"PURCHASERS") U.S.$120,000,000 principal amount of its 10% Senior Notes Due 2012
(the "OFFERED SECURITIES"). The Offered Securities will be unconditionally
guaranteed (each, a "GUARANTEE") on an unsecured senior basis by each of the
Company's subsidiaries listed on Schedule B hereto (the "GUARANTORS"). The
Offered Securities are to be issued under an indenture to be dated as of
February 18, 2004 (the "INDENTURE"), among the Company, the Guarantors and U.S.
Bank National Association, as Trustee. The United States Securities Act of 1933
is herein referred to as the "SECURITIES ACT".
The holders of the Offered Securities will be entitled to the benefits of a
Registration Rights Agreement of even date herewith among the Company, the
Guarantors and the Purchasers (the "REGISTRATION RIGHTS AGREEMENT"), pursuant to
which the Company agrees to file a registration statement with the Securities
and Exchange Commission (the "COMMISSION") registering the resale of the Offered
Securities under the Securities Act.
The Company and the Guarantors hereby jointly and severally agree with the
several Purchasers as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE GUARANTORS. The
Company and each Guarantor, jointly and severally, represents and warrants to,
and agrees with, the several Purchasers that:
(a) A preliminary offering circular dated February 1, 2004, and an
offering circular dated February 12, 2004, relating to the Offered
Securities to be offered by the Purchasers have been prepared by the
Company. Such preliminary offering circular (the "PRELIMINARY OFFERING
CIRCULAR") and offering circular (the "OFFERING CIRCULAR"), as supplemented
as of the date of this Agreement, are hereinafter collectively referred to
as the "OFFERING DOCUMENT". On the date of this Agreement, the Offering
Document does not include any 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, not
misleading. The preceding sentence does not apply to statements in or
1
omissions from the Offering Document based upon written information
furnished to the Company by any Purchaser through Credit Suisse First
Boston LLC ("CSFB") specifically for use therein, it being understood and
agreed that the only such information is that described as such in Section
7(b) hereof.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Offering Document; and the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification (which jurisdictions
are set forth opposite its name on Schedule B hereto), except where the
failure to be so qualified or to be in good standing would not individually
or in the aggregate have a material adverse effect on the condition
(financial or other), earnings, business affairs, business prospects,
properties or results of operations of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business (a "MATERIAL ADVERSE EFFECT").
(c) Each subsidiary of the Company has been duly incorporated and is
an existing corporation in good standing under the laws of the jurisdiction
of its incorporation, with corporate power and authority to own its
properties and conduct its business as described in the Offering Document;
and each subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires
such qualification (which jurisdictions are set forth opposite its name on
Schedule B hereto), except where the failure to be so qualified or to be in
good standing would not individually or in the aggregate have a Material
Adverse Effect; all of the issued and outstanding capital stock of each
subsidiary of the Company has been duly authorized and validly issued and
is fully paid and nonassessable; and, except for liens and encumbrances (i)
under the credit agreement dated as of April 9, 2003 by and among Woodcraft
Industries, Inc., PrimeWood, Inc., Brentwood Acquisition Corp., the Lenders
(as defined therein) and Antares Capital Corporation, as a Lender and as an
agent for the Lenders and (ii) contemplated under the credit agreement
described under the heading "The Senior Credit Facility" in the Offering
Document (collectively, the "SENIOR CREDIT FACILITY"), the capital stock of
each subsidiary owned by the Company, directly or through subsidiaries, is
owned free from liens, encumbrances and defects.
(d) The Indenture has been duly authorized by the Company and each of
the Guarantors; and when the Offered Securities are delivered and paid for
pursuant to this Agreement on the Closing Date (as defined below), the
Indenture will have been duly executed and delivered (assuming due
execution and delivery by the Trustee) and will constitute a valid and
legally binding obligation of the Company and the Guarantors, enforceable
in accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(e) The Offered Securities have been duly authorized by the Company;
when the Offered Securities are delivered and paid for pursuant to this
Agreement on the Closing Date (as defined below), such Offered Securities
(i) will have been duly executed, authenticated, issued and delivered, (ii)
will conform in all material respects to the description thereof contained
in the Offering Document and be entitled to the benefits provided in the
Indenture and (iii) will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(f) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company or any
Guarantor and any person that would give rise to a valid claim against the
Company or any Guarantor or any Purchaser for a brokerage commission,
finder's fee or other like payment.
(g) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement and the
Registration Rights Agreement in connection with the issuance and sale of
the Offered Securities, the Exchange Securities (as defined in the
Registration Rights Agreement) and the Private Exchange Securities (as
defined in the Registration Rights Agreement) by the Company, or the
issuance of the Guarantees by the Guarantors, except (i) for the order of
the Commission declaring the Exchange Offer Registration Statement or the
Shelf Registration Statement (each as defined in the Registration Rights
Agreement) effective and (ii) as may be required under foreign and state
securities or "blue sky" laws.
(h) The execution, delivery and performance of the Indenture, the
Guarantees, this Agreement and the Registration Rights Agreement, and the
issuance and sale of the Offered Securities, the Exchange Securities and
the Private Exchange Securities and compliance with the terms and
provisions thereof will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute, rule,
regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or any subsidiary
of the Company or any of their properties, or any agreement or instrument
to which the Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the properties
of the Company or any such subsidiary is subject (except, in each of the
preceding cases, for such breaches, violations or defaults as would not
individually or in the aggregate have a Material Adverse Effect), or the
charter or by-laws of the Company or any such subsidiary, and the Company
has full power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement, and the Exchange Securities
and Private Exchange Securities as contemplated by the Registration Rights
Agreement, and each Guarantor has full power and authority to issue the
Guarantees endorsed thereon, in each case as contemplated by this Agreement
and the Registration Rights Agreement.
(i) On the Closing Date, the Exchange Securities and the Private
Exchange Securities will have been duly authorized by the Company; and when
the Exchange Securities and the Private Exchange Securities are issued,
executed and authenticated in accordance with the terms of the Exchange
Offer and the Indenture, the Exchange Securities and the Private Exchange
Securities will be entitled to the benefits of the Indenture and will be
the valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(j) Each Guarantee to be endorsed on the Offered Securities by each
Guarantor has been duly authorized by such Guarantor; and when the
Guarantees are delivered by the Guarantors, such Guarantees will have been
duly executed and delivered by the Guarantors. When the Offered Securities
have been issued, executed and authenticated in accordance with the
Indenture and delivered to and paid for by the Purchasers in accordance
with the terms of this Agreement, the Guarantees of the Guarantors will
conform in all material respects to the descriptions thereof contained in
the Offering Document and will constitute valid and legally binding
obligations of the Guarantors, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(k) Each Guarantee to be endorsed on the Exchange Securities and
Private Exchange Securities by each Guarantor has been duly authorized by
such Guarantor; and, when issued, will have been duly executed and
delivered by each such Guarantor and will conform to the description
thereof contained in the Offering Document. When the Exchange Securities
and Private Exchange Securities have been issued, executed and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Guarantee of each Guarantor endorsed thereon will constitute
a valid and legally binding obligation of such Guarantor, enforceable in
accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(l) This Agreement and the Registration Rights Agreement have been
duly authorized, executed and delivered by the Company and each of the
Guarantors, and each is a valid and binding agreement of the Company and
each of the Guarantors, enforceable against the Company and each Guarantor
in accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles, and except that any rights to indemnity or contribution
thereunder may be limited by Federal or state securities laws or public
policy considerations. On the Closing Date, the Registration Rights
Agreement will conform as to legal matters to the description thereof in
the Offering Circular.
(m) Except as disclosed in the Offering Document, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects (except for liens and encumbrances under the
Senior Credit Facility) that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and
except as disclosed in the Offering Document, the Company and its
subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere with
the use made or to be made thereof by them.
(n) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(o) Except as disclosed in the Offering Document, no labor dispute
with the employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is threatened that might have a Material Adverse
Effect.
(p) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(q) Except as disclosed in the Offering Document, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect; and,
to the Company's knowledge, there is no pending investigation which might
lead to such a claim.
(r) Except as disclosed in the Offering Document, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective
properties that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect, or would materially and adversely affect the ability of the
Company or any Guarantor to perform its obligations under the Indenture,
this Agreement or the Registration Rights Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no such
actions, suits or proceedings are, to the Company's knowledge, threatened
or contemplated.
(s) The financial statements (including the notes thereto) included in
the Offering Document present fairly the financial position of the Company
and its consolidated subsidiaries as of the dates shown and their results
of operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent basis.
The pro forma financial statements (including the notes thereto) and the
other pro forma financial information included in the Offering Document (i)
except as stated therein have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and (ii) have been properly computed on the bases described
therein; to the Company's knowledge, the assumptions used in preparing the
pro forma financial statements included in the Offering Document 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 in all material respects to
those assumptions, and the pro forma columns therein reflect the proper
application in all material respects of those adjustments to the
corresponding historical financial statement amounts.
(t) Except as disclosed in the Offering Document, since the date of
the latest audited financial statements included in the Offering Document
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, and, except as disclosed in
or contemplated by the Offering Document, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock.
(u) Neither the Company nor any Guarantor is 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 United States
Investment Company Act of 1940 (the "INVESTMENT COMPANY ACT"); and neither
the Company nor any Guarantor is or, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Offering Document, will be an "investment
company" as defined in the Investment Company Act.
(v) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are listed
on any national securities exchange registered under Section 6 of the
United States Securities Exchange Act of 1934 (the "EXCHANGE ACT") or
quoted in a U.S. automated inter-dealer quotation system.
(w) Assuming the accuracy of the Purchasers' representations and
warranties and the Purchasers' compliance with the agreements in Section 4
hereof and compliance with the limitations and restrictions contained under
the heading "Transfer Restrictions" in the Offering Document, the offer and
sale of the Offered Securities by the Company to the several Purchasers in
the manner contemplated by this Agreement will be exempt from the
registration requirements of the Securities Act by reason of Section 4(2)
thereof and Regulation S thereunder ("REGULATION S"); and it is not
necessary to qualify an indenture in respect of the Offered Securities
under the United States Trust Indenture Act of 1939, as amended (the "TRUST
INDENTURE ACT").
(x) Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf (i) has, within the six-month period prior to
the date hereof, offered or sold in the United States or to
any U.S. person (as such terms are defined in Regulation S under the
Securities Act) the Offered Securities or the Guarantees or any security of
the same class or series as the Offered Securities or the Guarantees or
(ii) has offered or will offer or sell the Offered Securities or the
Guarantees (A) in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) under
the Securities Act or (B) with respect to any such securities sold in
reliance on Rule 903 of Regulation S, by means of any directed selling
efforts within the meaning of Rule 902(c) of Regulation S. The Company and
its affiliates and any person acting on its or their behalf have complied
and will comply with the offering restrictions requirement of Regulation S.
The Company has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities or
the Guarantees except for this Agreement.
(y) The entities listed on Schedule B hereto are the only
subsidiaries, direct or indirect, of the Company.
(z) Neither the Company nor any of its subsidiaries is (i) in
violation of its respective charter or by-laws or (ii) in default in the
performance of any obligation, agreement, covenant or condition contained
in any indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and its subsidiaries, taken as a
whole, to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or their respective property
is bound, except for such default that would not individually or in the
aggregate have a Material Adverse Effect.
(aa) Assuming the accuracy of the Purchasers' representations and
warranties and the Purchasers' compliance with the agreements in Section 4
hereof and compliance with the limitations and restrictions contained under
the heading "Transfer Restrictions" in the Offering Document, the Offered
Securities offered and sold in reliance on Regulation S have been and will
be offered and sold only in offshore transactions. The sale of the Offered
Securities pursuant to Regulation S is not part of a plan or scheme to
evade the registration provisions of the Securities Act.
(bb) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company or any
Guarantor and any person granting such person the right to require the
Company or such Guarantor to file a registration statement under the
Securities Act with respect to any securities of the Company or such
Guarantor or to require the Company or such Guarantor to include such
securities in any registration statement required to be filed pursuant to
the Registration Rights Agreement.
(cc) Assuming the accuracy of the Purchasers' representations and
warranties and the Purchasers' compliance with the agreements in Section 4
hereof and compliance with the limitations and restrictions contained under
the heading "Transfer Restrictions" in the Offering Document, it is not
necessary in connection with the issuance and sale of the Offered
Securities or the initial resale of the Offered Securities by the
Purchasers in the manner contemplated by this Agreement and the Offering
Document to register any of the Offered Securities or the Guarantees under
the Securities Act or to qualify the Indenture under the Trust Indenture
Act.
(dd) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Securities
Act (i) has imposed (or has informed the Company or any Guarantor that it
is considering imposing) any condition (financial or otherwise) on the
Company's or any Guarantor's retaining any rating assigned to the Company
or any Guarantor, any securities of the Company or any Guarantor or (ii)
has indicated to the Company or any Guarantor that it is considering (a)
the downgrading, suspension, or withdrawal of, or any review for a possible
change that does not indicate the direction of the possible change in, any
rating so assigned or (b) any change in the outlook for any rating of the
Company, any Guarantor or any securities of the Company or any Guarantor.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at a purchase price of 97.25% of the principal amount thereof
plus accrued interest from February 18, 2004 to the Closing Date (as hereinafter
defined), the respective principal amounts of Offered Securities set forth
opposite the names of the several Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the Offered
Securities to be offered and sold by the Purchasers in reliance on Regulation S
(the "REGULATION S SECURITIES") in the form of one or more temporary global
Securities in registered form without interest coupons (the " REGULATION S
GLOBAL SECURITIES") which will be deposited with the Trustee as custodian for
The Depository Trust Company ("DTC") and registered in the name of Cede & Co.,
as nominee for DTC. The Company will deliver against payment of the purchase
price the Offered Securities to be purchased by each Purchaser hereunder and to
be offered and sold by each Purchaser in reliance on Rule 144A under the
Securities Act (the "144A SECURITIES") in the form of one or more permanent
global securities in registered form without interest coupons (the "RESTRICTED
GLOBAL SECURITIES") deposited with the Trustee as custodian for DTC and
registered in the name of Cede & Co., as nominee for DTC. The Regulation S
Global Securities and the Restricted Global Securities shall be assigned
separate CUSIP numbers. The Restricted Global Securities and the Regulation S
Global Securities shall include the applicable legends regarding restrictions on
transfer set forth under "Transfer Restrictions" in the Offering Document.
Interests in any permanent global securities will be held only in book-entry
form through DTC except in the limited circumstances described in the Offering
Document.
Payment for the Regulation S Securities and the 144A Securities shall be
made by the Purchasers in Federal (same day) funds by wire transfer to an
account specified by the Company at the office of Cravath, Swaine & Xxxxx LLP at
10:00 A.M. (New York time), on February 18, 2004 or at such other time not later
than seven full business days thereafter as CSFB and the Company determine, such
time being herein referred to as the "Closing Date", against delivery to the
Trustee as custodian for DTC of (i) the Regulation S Global Securities
representing all of the Regulation S Securities and (ii) the Restricted Global
Securities representing all of the 144A Securities. The Regulation S Global
Securities and the Restricted Global Securities will be made available for
checking at the above office of Cravath, Swaine & Xxxxx LLP at least 24 hours
prior to the Closing Date.
4. REPRESENTATIONS BY PURCHASERS; RESALE BY PURCHASERS.
(a) Each Purchaser severally represents and warrants to the Company
that it is an "accredited investor" within the meaning of Regulation D
under the Securities Act.
(b) Each Purchaser severally acknowledges that the Offered 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 in accordance with Regulation S or pursuant to an exemption
from the registration requirements of the Securities Act. Each Purchaser
severally represents and agrees that it has offered and sold the Offered
Securities and will offer and sell the Offered Securities (i) as part of
its distribution at any time and (ii) otherwise until 40 days after the
later of the commencement of the offering and the Closing Date, only in
accordance with Rule 144A ("RULE 144A") or Rule 903 under the Securities
Act. Accordingly, neither such Purchaser nor its affiliates, nor any
persons acting on its or their behalf, have engaged or will engage in any
directed selling efforts with respect to the Offered Securities, and such
Purchaser, its affiliates and all persons acting on its or their behalf
have complied and will comply with the offering restrictions requirement of
Regulation S. Each Purchaser severally agrees that, at or prior to
confirmation of sale of the Offered Securities, other than a sale pursuant
to Rule 144A, such Purchaser will have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration that
purchases
the Offered 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 (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 date of the
commencement of the offering and the closing date, except in
either case in accordance with Regulation S (or Rule 144A if
available) under the Securities Act. Terms used above have
the meanings given to them by Regulation S."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) Each Purchaser severally agrees that it and each of its affiliates
has not entered and will not enter into any contractual arrangement with
respect to the distribution of the Offered Securities except for any such
arrangements with the other Purchasers or affiliates of the other
Purchasers or with the prior written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its affiliates
will not offer or sell the Offered Securities in the United States by means
of any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act, including, but not limited
to (i) any advertisement, article, notice or other communication published
in any newspaper, magazine or similar media or broadcast over television or
radio, or (ii) any seminar or meeting whose attendees have been invited by
any general solicitation or general advertising. Each Purchaser severally
agrees, with respect to resales made in reliance on Rule 144A of any of the
Offered Securities, to deliver either with the confirmation of such resale
or otherwise prior to settlement of such resale a notice to the effect that
the resale of such Offered Securities has been made in reliance upon the
exemption from the registration requirements of the Securities Act provided
by Rule 144A.
(e) Each of the Purchasers severally represents and agrees that (i) it
has not offered or sold and prior to the expiry of a period of six months
from the Closing Date, will not offer or sell any Offered 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 only communicated or caused to be
communicated and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the
meaning of section 21 of the Financial Services and Markets Act 2000 (the
"FSMA")) received by it in connection with the issue or sale of any Offered
Securities in circumstances in which section 21(1) of the FSMA does not
apply to the Company or any Guarantor; and (iii) it has complied and will
comply with all applicable provisions of the FSMA with respect to anything
done by it in relation to the Offered Securities in, from or otherwise
involving the United Kingdom.
5. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the several
Purchasers that:
(a) The Company will advise CSFB promptly of any proposal to amend or
supplement the Offering Document and will not effect such amendment or
supplementation without CSFB's consent, which consent may not be
unreasonably withheld. If, at any time prior to the completion of the
resale of the Offered Securities by the Purchasers any event occurs as a
result of which the Offering Document 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, not misleading, the
Company promptly will notify CSFB of such event and promptly will prepare,
at its own expense, an amendment or supplement which will
correct such statement or omission. Neither CSFB's consent to, nor the
Purchasers' delivery to offerees or investors of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 6.
(b) The Company will furnish to CSFB copies of any Preliminary
Offering Circular, the Offering Circular and all amendments and supplements
to such documents, in each case as soon as available and in such quantities
as CSFB reasonably requests, and the Company will furnish to CSFB on the
date hereof three copies of the Offering Document signed by a duly
authorized officer of the Company. At any time when the Company is not
subject to Section 13 or 15(d) of the Exchange Act, the Company will
promptly furnish or cause to be furnished to CSFB (and, upon request, to
each of the other Purchasers) and, upon request of holders and prospective
purchasers of the Offered Securities, to such holders and purchasers,
copies of the information required to be delivered to holders and
prospective purchasers of the Offered Securities pursuant to Rule
144A(d)(4) under the Securities Act (or any successor provision thereto) in
order to permit compliance with Rule 144A in connection with resales by
such holders of the Offered Securities. The Company will pay the expenses
of printing and distributing to the Purchasers all such documents.
(c) The Company will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions in the United States and
Canada as CSFB designates and will continue such qualifications in effect
so long as required for the resale of the Offered Securities by the
Purchasers, PROVIDED that the Company will not be required to qualify as a
foreign corporation or to file a general consent to service of process in
any such state or province.
(d) During the period of five years hereafter, the Company will
furnish to CSFB and, upon request, to each of the other Purchasers, as soon
as practicable after the end of each fiscal year, a copy of its annual
report to shareholders for such year; and the Company will furnish to CSFB
and, upon request, to each of the other Purchasers such other information
concerning the Company as CSFB may reasonably request.
(e) During the period of two years after the Closing Date, the Company
will, upon request, furnish to CSFB, each of the other Purchasers and any
holder of Offered Securities a copy of the restrictions on transfer
applicable to the Offered Securities.
(f) Until all of the Initial Securities have had their transfer
restrictions removed pursuant to the Registration Rights Agreement, the
Company will not, and will not permit any of its affiliates (as defined in
Rule 144 under the Securities Act) to, resell any of the Offered Securities
that have been reacquired by any of them, except for Offered Securities
purchased by the Company or any of its affiliates and resold in a
transaction registered under the Securities Act, PROVIDED, HOWEVER, that
the foregoing shall not in any way limit resales of Exchange Securities.
(g) During the period of two years after the Closing Date, neither the
Company nor any Guarantor will be or become 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.
(h) The Company will pay all expenses incidental to the performance of
its obligations under this Agreement, the Indenture and the Registration
Rights Agreement, including (i) the fees and expenses of the Trustee and
its professional advisors; (ii) all expenses in connection with the
execution, issue, authentication, packaging and initial delivery of the
Offered Securities and, as applicable, the Exchange Securities (as defined
in the Registration Rights Agreement), the preparation and printing of this
Agreement, the Registration Rights Agreement, the Offered Securities, the
Indenture, the Offering Document and amendments and supplements thereto,
and any other document relating to the issuance, offer, sale and delivery
of the Offered Securities and as
applicable the Exchange Securities; (iii) the cost of qualifying the
Offered Securities for trading in The Portal(SM) Market ("PORTAL") and any
expenses incidental thereto; (iv) the cost of any advertising approved by
the Company in connection with the issue of the Offered Securities (v) for
any expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Offered Securities or the Exchange
Securities for sale under the laws of such jurisdictions in the United
States and Canada as CSFB designates and the printing of memoranda relating
thereto, (vi) for any fees charged by investment rating agencies for the
rating of the Securities or the Exchange Securities, and (vii) for expenses
incurred in distributing Preliminary Offering Circulars and the Offering
Circular (including any amendments and supplements thereto) to the
Purchasers. The Company will also pay or reimburse the Purchasers (to the
extent incurred by them) for all reasonable travel expenses of the
Purchasers and the Company's officers and employees and any other
reasonable expenses of the Purchasers and the Company in connection with
attending or hosting meetings with prospective purchasers of the Offered
Securities from the Purchasers.
(i) In connection with the offering, until CSFB shall have notified
the Company and the other Purchasers of the completion of the resale of the
Offered Securities, neither the Company nor any of its affiliates has or
will, either alone or with one or more other persons, bid for or purchase
for any account in which it or any of its affiliates has a beneficial
interest any Offered Securities or attempt to induce any person to purchase
any Offered Securities; and neither it nor any of its affiliates will make
bids or purchases for the purpose of creating actual, or apparent, active
trading in, or of raising the price of, the Offered Securities.
(j) For a period of 180 days after the date of the initial offering of
the Offered Securities by the Purchasers, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Securities
Act (except with respect to the Offered Securities as contemplated by the
Registration Rights Agreement) relating to, any United States
dollar-denominated debt securities issued or guaranteed by the Company or
any Guarantor and having a maturity of more than one year from the date of
issue, or publicly disclose the intention to make any such offer, sale,
pledge, disposition or filing, without the prior written consent of CSFB.
The Company and the Guarantors will not at any time offer, sell, contract
to sell, pledge or otherwise dispose of, directly or indirectly, any
securities under circumstances where such offer, sale, pledge, contract or
disposition would cause the exemption afforded by Section 4(2) of the
Securities Act or the safe harbor of Regulation S thereunder to cease to be
applicable to the offer and sale of the Offered Securities.
6. CONDITIONS OF THE OBLIGATIONS OF THE PURCHASERS. The obligations of the
several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company and the Guarantors herein, to the accuracy of the statements of officers
of the Company contained in a certificate delivered to the Purchasers pursuant
to the provisions of this Section 6, to the performance by the Company and the
Guarantors of their respective obligations hereunder and to the following
additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of
this Agreement, of Deloitte & Touche LLP, in form and substance
satisfactory to the Purchasers, concerning the financial information with
respect to the Company set forth in the Offering Document.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of a majority
in interest of the Purchasers, including CSFB, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
offering or the sale of and payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities of the Company or any
Guarantor by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Securities Act), or any
public
announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company or any Guarantor (other
than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating) or any
announcement that the Company or any Guarantor has been placed on negative
outlook; (iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as
would, in the judgment of a majority in interest of the Purchasers,
including CSFB, be likely to prejudice materially the success of the
proposed issue, sale or distribution of the Offered Securities, whether in
the primary market or in respect of dealings in the secondary market; (iv)
any material suspension or material limitation of trading in securities
generally on the New York Stock Exchange or any setting of minimum prices
for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (v) any banking moratorium declared by U.S. Federal or New York
authorities; (vi) any major disruption of settlements of securities or
clearance services in the United States or (vii) any attack on, outbreak or
escalation of hostilities or act of terrorism involving the United States,
any declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of a majority in interest of the
Purchasers, including CSFB, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the offering or sale of and
payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated the Closing
Date, of Xxxxxxx Procter LLP, counsel for the Company, that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Offering Document; and the Company is
duly qualified to do business as a foreign corporation in good
standing in the jurisdictions set forth opposite its name on Schedule
B hereto, except where the failure to be so qualified or to be in good
standing would not individually or in the aggregate have a Material
Adverse Effect;
(ii) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority
to own its properties and conduct its business as described in the
Offering Document; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation in good standing in
the jurisdictions set forth opposite its name on Schedule B hereto,
except where the failure to be so qualified or to be in good standing
would not individually or in the aggregate have a Material Adverse
Effect; all of the issued and outstanding capital stock of each
subsidiary of the Company has been duly authorized and validly issued
and is fully paid and nonassessable; and the capital stock of each
subsidiary is owned of record by the Company, directly or through
subsidiaries, and, except for liens and encumbrances under the Senior
Credit Facility, is owned free from liens, encumbrances and defects.
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and each Guarantor and constitutes a valid
and legally binding obligation of the Company and each Guarantor,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(iv) The Offered Securities conform to the description thereof
contained in the Offering Document. The Offered Securities have been
duly authorized and, when the Offered Securities have been issued,
executed and authenticated in accordance with the Indenture and
delivered to and paid for by the Purchasers in accordance with the
terms of
this Agreement, the Offered Securities will have been duly executed,
issued and delivered by the Company and will constitute valid and
legally binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
(v) The Guarantee to be endorsed on the Offered Securities by
each Guarantor has been duly authorized by such Guarantor, and has
been duly executed and delivered by each such Guarantor and conforms
to the description thereof contained in the Offering Document. When
the Offered Securities have been issued, executed and authenticated in
accordance with the Indenture and delivered to and paid for by the
Purchasers in accordance with the terms of this Agreement, the
Guarantee of each Guarantor endorsed thereon will constitute a valid
and legally binding obligation of such Guarantor, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles;
(vi) The Guarantee to be endorsed on the Exchange Securities and
Private Exchange Securities by each Guarantor has been duly authorized
by such Guarantor; and, when issued, will have been duly executed and
delivered by each such Guarantor and will conform to the description
thereof contained in the Offering Document. When the Exchange
Securities and Private Exchange Securities have been issued, executed
and authenticated in accordance with the terms of the Exchange Offer
and the Indenture, the Guarantee of each Guarantor endorsed thereon
will constitute a valid and legally binding obligation of such
Guarantor, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(vii) The Exchange Securities and Private Exchange Securities
have been duly authorized by the Company; and when the Exchange
Securities and Private Exchange Securities are issued, executed and
authenticated in accordance with the terms of the Exchange Offer and
the Indenture, the Exchange Securities and Private Exchange Securities
will be entitled to the benefits of the Indenture and will be the
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles;
(viii) No consent, approval, authorization or order of, or filing
with, any governmental agency or body pursuant to Applicable Laws (as
defined below) or any court is required for the consummation of the
transactions contemplated by this Agreement and the Registration
Rights Agreement in connection with the issuance or sale of the
Offered Securities, the Exchange Securities and the Private Exchange
Securities by the Company, except such as may be required under state
securities or "blue sky" laws (as to which no opinion need be
rendered) and except for the order of the Commission declaring the
Exchange Offer Registration Statement or the Shelf Registration
Statement effective. "APPLICABLE LAWS" means those laws, rules and
regulations of the United States of America, the State of Delaware and
the State of New York that are normally applicable to transactions of
the type contemplated by this Agreement;
(ix) To such counsel's knowledge, there are no pending actions,
suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company or
any Guarantor to perform its obligations under the Indenture, this
Agreement or the Registration Rights Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are threatened or contemplated.
(x) The execution, delivery and performance of the Indenture, the
Guarantees, this Agreement and the Registration Rights Agreement, the
issuance and sale of the Offered Securities and compliance with the
terms and provisions thereof and the use of the proceeds of the
Offered Securities as described in the Offering Document under the
caption "Use of Proceeds" will not result in a breach or violation of
any of the terms and provisions of, or constitute a default under, any
statute, rule, regulation or order of any governmental agency or body
or any court having jurisdiction over the Company or any subsidiary of
the Company or any of their properties, or any agreement or instrument
to which the Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject (except,
in each of the preceding cases, for such breaches, violations or
defaults as would not individually or in the aggregate have a Material
Adverse Effect), or the charter or by-laws of the Company or any such
subsidiary, and the Company has full power and authority to authorize,
issue and sell the Offered Securities as contemplated by this
Agreement;
(xi) This Agreement and the Registration Rights Agreement have
been duly authorized, executed and delivered by the Company and each
of the Guarantors; and each is a valid and binding agreement of the
Company and each of the Guarantors, enforceable against the Company
and each Guarantor in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles, and
except that any rights to indemnity or contribution thereunder may be
limited by Federal or state securities laws or public policy
considerations.
(xii) It is not necessary in connection with (i) the offer, sale
and delivery of the Offered Securities and the Guarantees by the
Company to the several Purchasers pursuant to this Agreement or (ii)
the resales of the Offered Securities and the Guarantees by the
several Purchasers in the manner contemplated hereby to register the
Offered Securities or the Guarantees under the Securities Act or to
qualify an indenture in respect thereof under the Trust Indenture Act;
(xiii) Neither the Company nor any Guarantor is or, after giving
effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the Offering
Document, will be an "investment company" as defined in the Investment
Company Act; and
(xiv) The Indenture conforms 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.
In addition, such counsel shall state that, based on such counsel's
participation in the preparation of the Offering Document and without assuming
responsibility for the fairness or completeness of the information contained in
the Offering Document and having made no independent verifications thereof, such
counsel has no reason to believe that the Offering Document, or any amendment or
supplement thereto, as of the date thereof and as of the Closing Date, contained
or contains any untrue statement of a material fact or omitted to state any
material fact necessary to make the statements therein not misleading; the
descriptions in the Offering Document of statutes, legal and governmental
proceedings and contracts and other documents are accurate in all material
respects and fairly present
the information required to be shown; it being understood that such counsel need
make no statement as to the financial statements or other financial or
statistical data derived from such financial statements contained in the
Offering Document;
(d) The Purchasers shall have received from Cravath, Swaine & Xxxxx LLP,
counsel for the Purchasers, such opinion or opinions, dated the Closing Date,
with respect to the incorporation of the Company, the validity of the Offered
Securities, the Offering Document, the exemption from registration for the offer
and sale of the Offered Securities by the Company to the several Purchasers and
the resales by the several Purchasers as contemplated hereby and other related
matters as CSFB may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to pass
upon such matters.
(e) The Purchasers shall have received a certificate, dated the Closing
Date, of the President or any Vice President and a principal financial or
accounting officer of the Company in which such officers, to the best of their
knowledge after reasonable investigation, shall state that the representations
and warranties of the Company in this Agreement are true and correct, that the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Date, and
that, subsequent to the date of the most recent financial statements in the
Offering Document there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole except as set forth in the
Offering Document or as described in such certificate.
(f) The Purchasers shall have received a letter, dated the Closing Date, of
Deloitte & Touche LLP which meets the requirements of subsection (a) of this
Section, except that the specified date referred to in such letter will be a
date not more than three days prior to the Closing Date for the purposes of this
subsection.
(g) The Purchasers shall have received a certificate, dated the Closing
Date, of Xxxx Xxxxxx, Chief Financial Officer of the Company, relating to
certain financial data presented under the heading "Recent Developments" in the
Offering Document, in form and substance reasonably satisfactory to the
Purchasers in all respects.
(h) The Company, the Guarantors and the Trustee shall have executed and
delivered the Indenture in form and substance reasonably satisfactory to the
Purchasers and the Indenture shall be in full force and effect.
The Company will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFB may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and each Guarantor
will indemnify and hold harmless each Purchaser, its partners, members,
directors and officers and each person, if any, who controls such Purchaser
within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act, against any losses, claims, damages or liabilities, joint or
several, to which such Purchaser may become subject, under the Securities Act or
the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
breach of any of the representations and warranties of the Company contained
herein or any untrue statement or alleged untrue statement of any material fact
contained in the Offering Document, 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 in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading, including any
losses, claims, damages or liabilities arising out of or based upon the
Company's failure to perform its obligations under Section 5(a) of this
Agreement, and will reimburse each Purchaser for any legal or other expenses
reasonably incurred by such Purchaser in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; PROVIDED, HOWEVER, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon 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 written information furnished to the
Company by any Purchaser through CSFB specifically for use therein, it being
understood and agreed that the only such information consists of the information
described as such in subsection (b) below.
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities to which the Company may become subject, under the Securities Act or
the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Offering Document, or any amendment or supplement thereto, or arise out of
or are based upon the omission or the alleged omission to state therein a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Purchaser
through CSFB specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Purchaser consists of the following information in the Offering
Document furnished on behalf of each Purchaser: the sixth and tenth paragraphs,
the first sentence of the third paragraph and the third sentence of the ninth
paragraph, in each case under the caption "Plan of Distribution"; PROVIDED,
HOWEVER, that the Purchasers shall not be liable for any losses, claims, damages
or liabilities arising out of or based upon the Company's failure to perform its
obligations under Section 5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the failure to notify the indemnifying party shall not relieve it
from any liability that it may have under subsection (a) or (b) above 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 subsection (a) or
(b) above. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel 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 will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnified party shall effect any settlement of any
pending or threatened action for which indemnification is provided without the
prior written consent of the indemnifying parties, such consent not to be
unreasonably withheld or delayed. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened action 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 (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action and (ii) does not include a statement as to or an admission of
fault, culpability or failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Purchasers on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company 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 as well as any other relevant equitable
considerations. The relative benefits received by the Company 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 bear to the total discounts and commissions received by the
Purchasers from the Company 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 information supplied by the Company or the Purchasers
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). 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 discounts, fees and
commissions received by such Purchaser in connection with the purchase of the
Offered Securities 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
purchase obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company 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 Securities Act or the Exchange Act; and the
obligations of the Purchasers under this Section 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 person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act.
8. DEFAULT OF PURCHASERS. If any Purchaser or Purchasers default in their
obligations to purchase Offered Securities hereunder and the aggregate principal
amount of the Offered Securities that such defaulting Purchaser or Purchasers
agreed but failed to purchase does not exceed 10% of the total principal amount
of the Offered Securities, CSFB may make arrangements satisfactory to the
Company for the purchase of such Offered Securities by other persons, including
any of the Purchasers, but if no such arrangements are made by the Closing Date,
the non-defaulting Purchasers shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the Offered Securities that
such defaulting Purchasers agreed but failed to purchase. If any Purchaser or
Purchasers so default and the aggregate principal amount of the Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of the Offered Securities and arrangements
satisfactory to CSFB and the Company for the purchase of such Offered Securities
by other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Purchaser or
the Company, except as provided in Section 9. As used in this Agreement, the
term "Purchaser" includes any person substituted for a Purchaser under this
Section. Nothing herein will relieve a defaulting Purchaser from liability for
its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Purchasers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Purchaser, the Company or
any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Offered
Securities. If this Agreement is terminated pursuant to Section 8 or if for any
reason the purchase of the Offered Securities by the Purchasers is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the
Company and the Purchasers pursuant to Section 7 shall remain in effect. If the
purchase of the Offered Securities by the Purchasers is not consummated for any
reason other than solely because of the termination of this Agreement pursuant
to Section 8 or the occurrence of any event specified in clause (iii), (iv),
(v), (vi) or (vii) of Section 6(b), the Company will reimburse the Purchasers
for all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by it them in connection with the offering of the Offered
Securities.
10. NOTICES. All communications hereunder will be in writing and, if sent
to the Purchasers will be mailed, delivered or telegraphed and confirmed to the
Purchasers c/o Credit Suisse First Boston LLC, Eleven Madison Avenue, New York,
N.Y. 10010-3629, Attention: Transactions Advisory Group, or, if sent to the
Company, will be mailed, delivered or telegraphed and confirmed to it at WII
Components, Inc., 000 Xxxxxxx Xxxxxx XX, Xx. Xxxxx, Xxxxxxxxx 00000, Attention:
Xxxx Xxxxxxxxxxx, Chief Executive Officer and President; PROVIDED, HOWEVER, that
any notice to a Purchaser pursuant to Section 7 will be mailed, delivered or
telegraphed and confirmed to such Purchaser.
11. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the controlling
persons referred to in Section 7, and no other person will have any right or
obligation hereunder, except that holders of Offered Securities shall be
entitled to enforce the agreements for their benefit contained in the second and
third sentences of Section 5(b) hereof against the Company as if such holders
were parties hereto.
12. REPRESENTATION OF PURCHASERS. CSFB will act for the several Purchasers
in connection with this purchase, and any action under this Agreement taken by
CSFB will be binding upon all the Purchasers.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
If the foregoing is in accordance with the Purchasers' understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the Company, the Guarantors
and the several Purchasers in accordance with its terms.
Very truly yours,
WII COMPONENTS, INC.
By: /s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
Title: President
WOODCRAFT INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
PRIMEWOOD, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
BRENTWOOD ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
The foregoing Purchase Agreement is hereby
confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON LLC
Acting on behalf of itself and as the
Representative of the several Purchasers
By: /s/ Illegible
-------------------------
Name:
Title:
