Exhibit 10(a)
NATIONAL WINE & SPIRITS, INC.
NATIONAL WINE & SPIRITS CORPORATION
NWS, INC.
NWS-ILLINOIS, LLC
NWS MICHIGAN, INC.
$110,000,000
10-1/8% Senior Notes Due 2009
Purchase Agreement
January 20, 1999
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
BEAR, XXXXXXX & CO. INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
$110,000,000
10-1/8% SENIOR NOTES DUE 2009
OF NATIONAL WINE & SPIRITS, INC.
PURCHASE AGREEMENT
January 20, 1999
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
BEAR, XXXXXXX & CO. INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
c/x
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
National Wine & Spirits, Inc., an Indiana corporation (the "Company"), proposes
to issue and sell to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
("DLJ"), Bear, Xxxxxxx & Co. Inc. and First Chicago Capital Markets, Inc. (each,
an "Initial Purchaser," and, collectively, the "Initial Purchasers") an
aggregate of $110,000,000 in principal amount of its 10 1/8% Senior Notes due
2009 (the "Series A Notes"), subject to the terms and conditions set forth
herein. The Series A Notes are to be issued pursuant to the provisions of an
indenture (the "Indenture"), to be dated as of the Closing Date (as defined
below), among the Company, the Guarantors (as defined below) and Norwest Bank
Minnesota, N.A., as trustee (the "Trustee"). The Series A Notes and the Series B
Notes (as defined below) issuable in exchange therefor are collectively referred
to herein as the "Notes." The Notes will be guaranteed (the "Subsidiary
Guarantees") by each of the entities listed on Schedule A hereto (each, a
"Guarantor" and collectively the "Guarantors"). Capitalized terms used but not
defined herein shall have the meanings given to such terms in the Indenture.
1. Offering Memorandum. The Series A Notes will be offered and
sold to the Initial Purchasers pursuant to one or more exemptions from the
registration requirements under the Securities Act of 1933, as amended (the
"Act"). The Company and the Guarantors have prepared a preliminary offering
memorandum, dated January 6, 1999 (the "Preliminary Offering Memorandum") and a
final offering memorandum, dated January 20, 1999 (the "Offering Memorandum"),
relating to the Series A Notes and the Subsidiary Guarantees. Upon original
issuance thereof, and until such time as the same is no longer required pursuant
to the Indenture, the Series A Notes (and all securities issued in exchange
therefor, in substitution thereof or upon conversion thereof) shall bear the
following legend:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE ACT) (A "QIB"), (B) IT HAS
ACQUIRED THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1),
(2), (3) OR (7) OR REGULATION D UNDER THE SECURITIES ACT) (AN
"IAI"),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE
SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144 UNDER THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO
SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF
THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE)
AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE ACT (AND BASED UPON AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE
OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF
THE FOREGOING."
2. Agreements to Sell and Purchase. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained herein, the Company agrees to
issue and sell to the Initial Purchasers, and each Initial Purchaser agrees,
severally and not jointly, to purchase from the Company, the principal amounts
of Series A Notes opposite the name of such Initial Purchaser on Schedule B
hereto at a purchase price equal to 97.20% of the principal amount thereof (the
"Purchase Price").
3. Terms of Offering. The Initial Purchasers have advised the
Company that the Initial Purchasers will make offers (the "Exempt Resales") of
the Series A Notes purchased hereunder on the terms set forth in the Offering
Memorandum, as amended or supplemented, solely to (i) persons whom the Initial
Purchasers reasonably believe to be "qualified institutional buyers" as defined
in Rule 144A under the Act ("QIBs") and (ii) persons permitted to purchase the
Series A Notes in offshore transactions in reliance upon Regulation S under the
Act (each, a "Regulation S Purchaser") (such persons specified in clauses (i)
and (ii) being referred to herein as the "Eligible Purchasers"). The Initial
Purchasers will offer the Series A Notes to Eligible Purchasers initially at a
price equal to 100% of the principal amount thereof. Such price may be changed
at any time without notice.
Holders (including subsequent transferees) of the Series A Notes will
have the registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement"), to be dated the Closing Date, in substantially
the form of Exhibit A hereto, for so long as such Series A Notes constitute
"Transfer Restricted Securities" (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the Company and the
Guarantors will agree to file with the Securities and Exchange Commission (the
"Commission") under the circumstances set forth therein, (i) a registration
statement under the Act (the "Exchange Offer Registration Statement") relating
to the Company's 10 1/8% Series B Senior Notes due 2009 (the "Series B Notes"),
to be offered in exchange for the Series A Notes (such offer to exchange being
referred to as the "Exchange Offer") and the Subsidiary Guarantees thereof and
(ii) a shelf registration statement pursuant to Rule 415 under the Act (the
"Shelf Registration Statement" and, together with the Exchange Offer
Registration Statement, the "Registration Statements") relating to the resale by
certain holders of the Series A Notes and to use their best efforts to cause
such Registration Statements to be declared effective within 150 days after the
Closing Date and usable for the periods specified in the Registration Rights
Agreement and to consummate the Exchange Offer. This Agreement, the Indenture,
the Notes, the Subsidiary Guarantees and the Registration Rights Agreement are
hereinafter sometimes referred to collectively as the "Operative Documents."
Concurrently with the Offering of the Notes, the Company will
restructure its operations as described in the Offering Memorandum under the
heading "Reorganization of the Company" (the "Reorganization") and enter into
the New Credit Facility (as defined in the Offering Memorandum).
4. Delivery and Payment.
(a) Delivery of, and payment of the Purchase Price in immediately available
funds for, the Series A Notes shall be made at the offices of Xxxxxx & Xxxxxxx
in Chicago, Illinois or such other location as may be mutually acceptable. Such
delivery and payment shall be made at 10:00 a.m. Chicago time, on January 25,
1999 or at such other time on the same date or such other date as shall be
agreed upon by the Initial Purchasers and the Company in writing. The time and
date of such delivery and the payment for the Series A Notes are herein called
the "Closing Date."
(b) One or more of the Series A Notes in definitive global form, registered
in the name of Cede & Co., as nominee of the Depository Trust Company ("DTC"),
having an aggregate principal amount corresponding to the aggregate principal
amount of the Series A Notes (collectively, the "Global Note"), shall be
delivered by the Company to the Initial Purchasers (or as the Initial Purchasers
direct) in each case with any transfer taxes thereon duly paid by the Company
against payment by the Initial Purchasers of the Purchase Price thereof by wire
transfer in same day funds to the order of the Company. The Global Note shall be
made available to the Initial Purchasers for inspection not later than 9:30
a.m., New York City time, on the business day immediately preceding the Closing
Date.
5. Agreements of the Company and the Guarantors. Each of the
Company and the Guarantors hereby agrees with the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by the
Initial Purchasers, confirm such advice in writing, (i) of the issuance by any
state securities commission of any stop order suspending the qualification or
exemption from qualification of any Series A Notes for offering or sale in any
jurisdiction designated by the Initial Purchasers pursuant to Section 5(e)
hereof, or the initiation of any proceeding by any state securities commission
or any other federal or state regulatory authority for such purpose and (ii) of
the happening of any event during the period referred to in Section 5(c) below
that makes any statement of a material fact made in the Preliminary Offering
Memorandum or the Offering Memorandum untrue or that requires any additions to
or changes in the Preliminary Offering Memorandum or the Offering Memorandum in
order to make the statements therein not misleading. The Company and the
Guarantors shall use their best efforts to prevent the issuance of any stop
order or order suspending the qualification or exemption of any Series A Notes
under any state securities or Blue Sky laws and, if at any time any state
securities commission or other federal or state regulatory authority shall issue
an order suspending the qualification or exemption of any Series A Notes under
any state securities or Blue Sky laws, the Company and the Guarantors shall use
their best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
(b) To furnish the Initial Purchasers and those persons identified by the
Initial Purchasers to the Company as many copies of the Preliminary Offering
Memorandum and the Offering Memorandum, and any amendments or supplements
thereto, as the Initial Purchasers may reasonably request for the time period
specified in Section 5(c). Subject to the Initial Purchaser's compliance with
its representations and warranties and agreements set forth in Section 7 hereof,
the Company consents to the use of the Preliminary Offering Memorandum and the
Offering Memorandum, and any amendments and supplements thereto required
pursuant hereto, by the Initial Purchasers in connection with Exempt Resales.
(c) During such period as in the opinion of counsel for the Initial
Purchasers an Offering Memorandum is required by law to be delivered in
connection with Exempt Resales by the Initial Purchasers and in connection with
market-making activities of the Initial Purchasers for so long as any Series A
Notes are outstanding, (i) not to make any amendment or supplement to the
Offering Memorandum of which the Initial Purchasers shall not previously have
been advised or to which the Initial Purchasers shall reasonably object after
being so advised and (ii) to prepare promptly upon the Initial Purchaser's
reasonable request, any amendment or supplement to the Offering Memorandum which
may be necessary or advisable in connection with such Exempt Resales or such
market-making activities.
(d) If, during the period referred to in Section 5(c) above, any event
shall occur or condition shall exist as a result of which, in the opinion of
counsel to the Initial Purchasers, it becomes necessary to amend or supplement
the Offering Memorandum in order to make the statements therein, in the light of
the circumstances when such Offering Memorandum is delivered to an Eligible
Purchaser, not misleading, or if, in the opinion of counsel to the Initial
Purchasers, it is necessary to amend or supplement the Offering Memorandum to
comply with any applicable law, forthwith to prepare an appropriate amendment or
supplement to such Offering Memorandum so that the statements therein, as so
amended or supplemented, will not, in the light of the circumstances when it is
so delivered, be misleading, or so that such Offering Memorandum will comply
with applicable law, and to furnish to the Initial Purchasers and such other
persons as the Initial Purchasers may designate such number of copies thereof as
the Initial Purchasers may reasonably request.
(e) Prior to the sale of all Series A Notes pursuant to Exempt Resales as
contemplated hereby, to cooperate with the Initial Purchasers and counsel to the
Initial Purchasers in connection with the registration or qualification of the
Series A Notes for offer and sale to the Initial Purchasers and pursuant to
Exempt Resales under the securities or Blue Sky laws of such jurisdictions as
the Initial Purchasers may request and to continue such registration or
qualification in effect so long as required for Exempt Resales and to file such
consents to service of process or other documents as may be necessary in order
to effect such registration or qualification; provided, however, that neither
the Company nor any Guarantor shall be required in connection therewith to
qualify as a foreign corporation in any jurisdiction in which it is not now so
qualified or to take any action that would subject it to general consent to
service of process or taxation other than as to matters and transactions
relating to the Preliminary Offering Memorandum, the Offering Memorandum or
Exempt Resales, in any jurisdiction in which it is not now so subject.
(f) So long as the Notes are outstanding, (i) to mail and make generally
available as soon as practicable after the end of each fiscal year to the record
holders of the Notes a financial report of the Company and its subsidiaries on a
consolidated basis, all such financial reports to include a consolidated balance
sheet, a consolidated statement of operations, a consolidated statement of cash
flows and a consolidated statement of shareholders' equity as of the end of and
for such fiscal year, together with comparable information as of the end of and
for the preceding year, certified by the Company's independent public
accountants and (ii) to mail and make generally available as soon as practicable
after the end of each quarterly period (except for the last quarterly period of
each fiscal year) to such holders, a consolidated balance sheet, a consolidated
statement of operations and a consolidated statement of cash flows as of the end
of and for such period, and for the period from the beginning of such year to
the close of such quarterly period, together with comparable information for the
corresponding periods of the preceding year.
(g) So long as the Notes are outstanding, to furnish to the Initial
Purchasers as soon as available copies of all reports or other communications
furnished by the Company or any of the Guarantors to its security holders or
furnished to or filed with the Commission or any national securities exchange on
which any class of securities of the Company or any of the Guarantors is listed
and such other publicly available information concerning the Company and/or its
subsidiaries as the Initial Purchasers may reasonably request.
(h) So long as any of the Series A Notes remain outstanding and during any
period in which the Company and the Guarantors are not subject to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
to make available to any holder of Series A Notes in connection with any sale
thereof and any prospective purchaser of such Series A Notes from such holder,
the information ("Rule 144A Information") required by Rule 144A(d)(4) under the
Act.
(i) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of the obligations of the Company and the
Guarantors under this Agreement, including: (i) the fees, disbursements and
expenses of counsel to the Company and the Guarantors and accountants of the
Company and the Guarantors in connection with the sale and delivery of the
Series A Notes to the Initial Purchasers and pursuant to Exempt Resales, and all
other fees and expenses in connection with the preparation, printing, filing and
distribution of the Preliminary Offering Memorandum, the Offering Memorandum and
all amendments and supplements to any of the foregoing (including financial
statements), including the mailing and delivering of copies thereof to the
Initial Purchasers and persons designated by them in the quantities specified
herein, (but excluding any legal fees and expenses of Initial Purchasers'
counsel incurred by such counsel in connection therewith) (ii) all costs and
expenses related to the transfer and delivery of the Series A Notes to the
Initial Purchasers and pursuant to Exempt Resales, including any transfer or
other taxes payable thereon, (iii) all costs of printing or producing this
Agreement, the other Operative Documents and any other agreements or documents
in connection with the offering, purchase, sale or delivery of the Series A
Notes, (iv) all expenses in connection with the registration or qualification of
the Series A Notes and the Subsidiary Guarantees for offer and sale under the
securities or Blue Sky laws of the several states and all costs of printing or
producing any preliminary and supplemental Blue Sky memoranda in connection
therewith (including the filing fees and fees and disbursements of counsel for
the Initial Purchasers, not to exceed $10,000 in connection with such
registration or qualification and memoranda relating thereto), (v) the cost of
printing certificates representing the Series A Notes and the Subsidiary
Guarantees, (vi) all expenses and listing fees in connection with the
application for quotation of the Series A Notes in the National Association of
Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL
("PORTAL"), (vii) the fees and expenses of the Trustee and the Trustee's counsel
in connection with the Indenture, the Notes and the Subsidiary Guarantees,
(viii) the costs and charges of any transfer agent, registrar and/or depositary
(including DTC), (ix) any fees charged by rating agencies for the rating of the
Notes, (x) all costs and expenses of the Exchange Offer and any Registration
Statement, as set forth in the Registration Rights Agreement, (xi) all fees and
expenses in connection with the Escrow Agreement and Escrow Account, and (xii)
and all other costs and expenses incident to the performance of the obligations
of the Company and the Guarantors hereunder for which provision is not otherwise
made in this Section.
(j) To use its best efforts to effect the inclusion of the Series A Notes
in PORTAL and to maintain the listing of the Series A Notes on PORTAL for so
long as the Series A Notes are outstanding.
(k) To obtain the approval of DTC for "book-entry" transfer of the Notes,
and to comply with all of its agreements set forth in the representation letters
of the Company and the Guarantors to DTC relating to the approval of the Notes
by DTC for "book-entry" transfer.
(l) During the period beginning on the date hereof and continuing to and
including the Closing Date, not to offer, sell, contract to sell or otherwise
transfer or dispose of any debt securities of the Company or any Guarantor or
any warrants, rights or options to purchase or otherwise acquire debt securities
of the Company or any Guarantor substantially similar to the Notes and the
Subsidiary Guarantees (other than (i) the Notes and the Subsidiary Guarantees
and (ii) commercial paper issued in the ordinary course of business), without
the prior written consent of the Initial Purchaser.
(m) Not to sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Act) that would be
integrated with the sale of the Series A Notes to the Initial Purchasers or
pursuant to Exempt Resales in a manner that would require the registration of
any such sale of the Series A Notes under the Act.
(n) Not to voluntarily claim, and to actively resist any attempts to claim,
the benefit of any usury laws against the holders of any Notes and the related
Subsidiary Guarantees.
(o) To cause the Exchange Offer to be made in the appropriate form to
permit Series B Notes and guarantees thereof by the Guarantors registered
pursuant to the Act to be offered in exchange for the Series A Notes and the
Subsidiary Guarantees and to comply with all applicable federal and state
securities laws in connection with the Exchange Offer.
(p) To comply with all of its agreements set forth in the Registration
Rights Agreement.
(q) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by it prior to the
Closing Date and to satisfy all conditions precedent to the delivery of the
Series A Notes and the Subsidiary Guarantees.
6. Representations, Warranties and Agreements of the Company
and the Guarantors. As of the date hereof, each of the Company and the
Guarantors represents and warrants to, and agrees with, the Initial Purchasers,
jointly and severally, that:
(a) The Preliminary Offering Memorandum and the Offering Memorandum do not,
and any supplement or amendment to them will not, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties contained in this paragraph (a) shall not apply
to statements in or omissions from the Preliminary Offering Memorandum or the
Offering Memorandum (or any supplement or amendment thereto) based upon
information relating to the Initial Purchasers furnished to the Company in
writing by the Initial Purchasers expressly for use therein. No stop order
preventing the use of the Preliminary Offering Memorandum or the Offering
Memorandum, or any amendment or supplement thereto, or any order asserting that
any of the transactions contemplated by this Agreement are subject to the
registration requirements of the Act, has been issued.
(b) Each of the Company, the Guarantors and their respective subsidiaries,
has been duly incorporated or formed, as applicable, is validly existing as a
corporation or limited liability company, as applicable, under the laws of its
jurisdiction of incorporation of formation and has the requisite power and
authority to carry on its business as described in the Preliminary Offering
Memorandum and the Offering Memorandum and to own, lease and operate its
properties, and each is duly qualified, in good standing and authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
business, prospects, financial condition or results of operations of the
Company, the Guarantors and their respective subsidiaries, taken as a whole (a
"Material Adverse Effect").
(c) All outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable.
(d) National Wine & Spirits Corporation, NWS, Inc., NWS Michigan, Inc. and
NWS-Illinois, LLC are the only subsidiaries, direct or indirect, of the Company.
All of the outstanding shares of capital stock of National Wine & Spirits
Corporation, NWS, Inc. and NWS Michigan, Inc. and all of the membership
interests of NWS-Illinois, LLC have been duly authorized and validly issued and
are fully paid and non-assessable, and all of such shares and membership
interests (except the membership interests of NWS-Illinois, LLC owned by Xxxxxx
X. Xxxx, are, or will be on or prior to the Closing Date, owned by the Company,
directly or indirectly through one or more subsidiaries, free and clear of any
security interest, claim, lien, encumbrance or adverse interest of any nature
(each, a "Lien"). None of the Company or its subsidiaries has any equity
investment in any other entity (except a 50% interest held by NWS, Inc. in U.S.
Beverage, LLC and a 25% interest held by the Company in Commonwealth Wine &
Spirits, LLC as described in the Offering Memorandum).
(e) This Agreement has been duly authorized, executed and delivered by the
Company and each of the Guarantors.
(f) The Indenture and the New Credit Facility have been duly authorized by
the Company and each of the Guarantors. On the Closing Date, the Indenture and
the New Credit Facility will have been validly executed and delivered by the
Company and each of the Guarantors. When the Indenture has been duly executed
and delivered by the Company and each of the Guarantors, the Indenture will be a
valid and binding agreement of the Company and each Guarantor, enforceable
against the Company and each Guarantor in accordance with its terms except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability. On the Closing Date, the
Indenture will conform in all material respects to the requirements of the Trust
Indenture Act of 1939, as amended (the "TIA" or "Trust Indenture Act"), and the
rules and regulations of the Commission applicable to an indenture which is
qualified thereunder.
(g) The Series A Notes have been duly authorized and, on the Closing Date,
will have been validly executed and delivered by the Company. When the Series A
Notes have been issued, executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, the Series A Notes
will be entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their terms except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(h) On the Closing Date, the Series B Notes will have been duly authorized
by the Company. When the Series B Notes are issued, executed and authenticated
in accordance with the terms of the Exchange Offer and the Indenture, the Series
B Notes will be entitled to the benefits of the Indenture and will be the valid
and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(i) The Subsidiary Guarantee to be endorsed on the Series A Notes by each
Guarantor has been duly authorized by each such Guarantor. On the Closing Date,
the Subsidiary Guarantee will have been duly executed and delivered by each such
Guarantor. When the Series A Notes have been issued, executed and authenticated
in accordance with the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, the Subsidiary
Guarantee of each Guarantor endorsed thereon will be entitled to the benefits of
the Indenture and will be the valid and binding obligation of such Guarantor,
enforceable against such Guarantor in accordance with its terms, except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration and
the availability of equitable remedies may be limited by equitable principles of
general applicability.
(j) The Subsidiary Guarantee to be endorsed on the Series B Notes by each
Guarantor has been duly authorized by each such Guarantor. When issued, the
Subsidiary Guarantee to be endorsed on the Series B Notes will have been duly
executed and delivered by each such Guarantor. When the Series B Notes have been
issued, executed and authenticated in accordance with the terms of the Exchange
Offer and the Indenture, the Subsidiary Guarantee of each Guarantor endorsed
thereon will be entitled to the benefits of the Indenture and will be the valid
and binding obligation of such Guarantor, enforceable against such Guarantor in
accordance with its terms, except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(k) The Registration Rights Agreement has been duly authorized by the
Company and each of the Guarantors. On the Closing Date, the Registration Rights
Agreement will have been duly executed and delivered by the Company and each of
the Guarantors. When the Registration Rights Agreement has been duly executed
and delivered, the Registration Rights Agreement will be a valid and binding
agreement of the Company and each of the Guarantors, enforceable against the
Company and each Guarantor in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(l) Each of the Operative Documents, when executed and delivered, will
conform in all material respects to the descriptions thereof contained in the
Offering Memorandum.
(m) None of the Company or its subsidiaries is in violation of its
respective articles of incorporation, articles of organization, by-laws or
operating agreement, as applicable, or in default in the performance of any
obligation, agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material to
the Company and its subsidiaries 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.
(n) The execution, delivery and performance of this Agreement, the New
Credit Facility and the other Operative Documents by the Company and each of the
Guarantors, compliance by the Company and each of the Guarantors with all
provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby, including the Reorganization, will not (i)
require any consent, approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except such as may be required
under the securities or Blue Sky laws of the various states), (ii) conflict with
or constitute a breach of any of the terms or provisions of, or a default under,
the articles of incorporation, articles of organization, by-laws or operating
agreement of the Company or any of the Guarantors or 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 the Guarantors is a party or by which the Company or any of the Guarantors or
their respective property is bound, except as would not singly or in the
aggregate have a Material Adverse Effect (iii) violate or conflict with any
applicable law or any rule, regulation, judgment, order or decree of any court
or any governmental body or agency having jurisdiction over the Company, any of
the Guarantors or their respective property, (iv) result in the imposition or
creation of (or the obligation to create or impose) a Lien under, any agreement
or instrument to which the Company or any of the Guarantors is a party or by
which the Company or any of the Guarantors or their respective property is
bound, or (v) result in the termination, suspension or revocation of any
Authorization (as defined below) of the Company or any of the Guarantors or
result in any other impairment of the rights of the holder of any such
Authorization.
(o) There are no legal or governmental proceedings pending or threatened to
which the Company or any of the Guarantors, is or could be a party or to which
any of their respective property is or could be subject, which might result,
singly or in the aggregate, in a Material Adverse Effect.
(p) None of the Company or any of the Guarantors has violated any foreign,
federal, state or local law or regulation relating to the protection of human
health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), any provisions of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") any law or
regulation of the Federal Bureau of Alcohol, Tobacco and Firearms or of any
state or local government with respect to the purchase, sale or distribution of
alcohol-based beverages ("Alcohol Laws") or any provisions of the Foreign
Corrupt Practices Act or the rules and regulations promulgated thereunder,
except for such violations which, singly or in the aggregate, would not have a
Material Adverse Effect.
(q) There are no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws or any
Authorization, any related constraints on operating activities and any potential
liabilities to third parties) or Alcohol Laws which would, singly or in the
aggregate, have a Material Adverse Effect.
(r) Each of the Company and its subsidiaries has such permits, licenses,
consents, exemptions, franchises, authorizations and other approvals (each, an
"Authorization") and has made all filings with and notices to all governmental
or regulatory authorities and self-regulatory organizations and all courts and
other tribunals, including without limitation, under any applicable Alcohol
Laws, as are necessary to own, lease, license and operate its respective
properties and to conduct its business, except where the failure to have any
such Authorization or to make any such filing or notice would not, singly or in
the aggregate, have a Material Adverse Effect. Each such Authorization is valid
and in full force and effect and each of the Company and the Guarantors is in
compliance with all the terms and conditions thereof and with the rules and
regulations of the authorities and governing bodies having jurisdiction with
respect thereto; and no event has occurred (including, without limitation, the
receipt of any notice from any authority or governing body) which allows or,
after notice or lapse of time or both, would allow, revocation, suspension or
termination of any such Authorization or results or, after notice or lapse of
time or both, would result in any other impairment of the rights of the holder
of any such Authorization; and such Authorizations contain no restrictions that
are burdensome to the Company or any of its subsidiaries; except where such
failure to be valid and in full force and effect or to be in compliance, the
occurrence of any such event or the presence of any such restriction would not,
singly or in the aggregate, have a Material Adverse Effect.
(s) The accountants, the firms of Xxxx, Sapper & Xxxxxx and Ernst & Young
LLP, that have certified the financial statements and supporting schedules
included in the Preliminary Offering Memorandum and the Offering Memorandum are
independent public accountants with respect to the Company and the Guarantors,
as required by the Act and the Exchange Act. The historical financial
statements, together with related schedules and notes, set forth in the
Preliminary Offering Memorandum and the Offering Memorandum comply as to form in
all material respects with the requirements applicable to registration
statements on Form S-1 under the Act.
(t) The historical financial statements, together with related schedules
and notes forming part of the Offering Memorandum (and any amendment or
supplement thereto), present fairly the combined financial position, results of
operations and changes in financial position of the Company and its consolidated
subsidiaries on the basis stated in the Offering Memorandum at the respective
dates or for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and statistical
information and data set forth in the Offering Memorandum (and any amendment or
supplement thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Company and its subsidiaries.
(u) Neither the Company nor any of the Guarantors is or, after giving
effect to the offering and sale of the Series A Notes and the application of the
net proceeds thereof as described in the Offering Memorandum, will be, an
"investment company," as such term is defined in the Investment Company Act of
1940, as amended.
(v) There are no contracts, agreements or understandings between the
Company or any Guarantor and any person granting such person the right to
require the Company or such Guarantor to file a registration statement under the
Act with respect to any securities of the Company or such Guarantor or to
require the Company or such Guarantor to include such securities with the Notes
and Subsidiary Guarantees registered pursuant to any Registration Statement.
(w) Neither the Company, any of the Guarantors nor any agent thereof acting
on the behalf of them has taken, and none of them will take, any action that
might cause this Agreement or the issuance or sale of the Series A Notes to
violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or
Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal
Reserve System.
(x) No "nationally recognized statistical rating organization" as such term
is defined for purposes of Rule 436(g)(2) under the Act (i) has imposed (or has
informed the Company or any Guarantor that it is considering imposing) any
condition (financial or otherwise) on the Company's or any Guarantor's retaining
any rating assigned to the Company or any Guarantor, any securities of the
Company or any Guarantor or (ii) has indicated to the Company or any Guarantor
that it is considering (a) the downgrading, suspension, or withdrawal of, or any
review for a possible change that does not indicate the direction of the
possible change in, any rating so assigned or (b) any change in the outlook for
any rating of the Company, any Guarantor or any securities of the Company or any
Guarantor.
(y) Since the respective dates as of which information is given in the
Offering Memorandum other than as set forth in the Offering Memorandum
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there has not occurred any material adverse change or any
development involving a prospective material adverse change in the condition,
financial or otherwise, or the earnings, business, management or operations of
the Company and the Guarantors, taken as a whole, (ii) there has not been any
material adverse change or any development involving a prospective material
adverse change in the capital stock or in the long-term debt of the Company or
any of the Guarantors and (iii) neither the Company nor any of the Guarantors
has incurred any material liability or obligation, direct or contingent.
(z) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of their respective dates, contains all the information specified
in, and meeting the requirements of, Rule 144A(d)(4) under the Act.
(aa) When the Series A Notes and the Subsidiary Guarantees are issued
and delivered pursuant to this Agreement, neither the Series A Notes nor
the Subsidiary Guarantees will be of the same class (within the meaning of
Rule 144A under the Act) as any security of the Company or the Guarantors
that is listed on a national securities exchange registered under Section 6
of the Exchange Act or that is quoted in a United States automated
inter-dealer quotation system.
(bb) No form of general solicitation or general advertising (as
defined in Regulation D under the Act) was used by the Company, any of the
Guarantors or any of their respective representatives (other than the
Initial Purchaser, as to whom the Company and the Guarantors make no
representation) in connection with the offer and sale of the Series A Notes
contemplated hereby, including, but not limited to, articles, notices or
other communications published in any newspaper, magazine, or similar
medium or broadcast over television or radio, or any seminar or meeting
whose attendees have been invited by any general solicitation or general
advertising. No securities of the same class as the Series A Notes have
been issued and sold by the Company within the six-month period immediately
prior to the date hereof.
(cc) Prior to the effectiveness of any Registration Statement, the
Indenture is not required to be qualified under the TIA.
(dd) None of the Company, any of the Guarantors nor any of their respective
affiliates or any person acting on its or their behalf (other than the Initial
Purchaser, as to whom the Company and the Guarantors make no representation) has
engaged or will engage in any directed selling efforts within the meaning of
Regulation S under the Act ("Regulation S") with respect to the Series A Notes
or the Subsidiary Guarantees.
(ee) The Company, the Guarantors and their respective affiliates and
all persons acting on their behalf (other than the Initial Purchasers, as
to whom the Company and the Guarantors make no representation) have
complied with and will comply with the offering restrictions requirements
of Regulation S in connection with the offering of the Series A Notes
outside the United States and, in connection therewith, the Offering
Memorandum will contain the disclosure required by Rule 902(h).
(ff) The Series A Notes sold in reliance on Regulation S will be
represented upon issuance by a temporary global security that may not be
exchanged for definitive securities until the expiration of the 40-day
restricted period referred to in Rule 902(c)(3) of the Act and only upon
certification of beneficial ownership of such Series A Notes by non-U.S.
persons or U.S. Persons who purchased such Series A Notes in transactions
that were exempt from the registration requirements of the Act.
(gg) The Series A Notes offered and sold in reliance on Regulation S
have been and will be offered and sold only in offshore transactions.
(hh) The sale of the Series A Notes pursuant to Regulation S is not
part of a plan or scheme to evade the registration provisions of the Act.
(ii) No registration under the Act of the Series A Notes or the
Subsidiary Guarantees is required for the sale of the Series A Notes and
the Subsidiary Guarantees to the Initial Purchasers as contemplated hereby
or for the Exempt Resales assuming (i) the Initial Purchaser's
representations and warranties set forth in Section 7 hereof are true and
(ii) the Initial Purchasers have complied with the agreements set forth in
Section 7 hereof.
(jj) Each certificate signed by any officer of the Company or any
Guarantor and delivered to the Initial Purchasers or counsel for the
Initial Purchasers shall be deemed to be a representation and warranty by
the Company or such Guarantor to the Initial Purchasers as to the matters
covered thereby.
(kk) All indebtedness of the Company and the Guarantors that will be
repaid with the proceeds of the issuance and sale of the Series A Notes was
incurred, and the indebtedness represented by the Series A Notes is being
incurred, for proper purposes and in good faith and each of the Company and
the Guarantors was, at the time of the incurrence of such indebtedness that
will be repaid with the proceeds of the issuance and sale of the Series A
Notes, and will be on the Closing Date (after giving effect to the
application of the proceeds from the issuance of the Series A Notes)
solvent, and had at the time of the incurrence of such indebtedness that
will be repaid with the proceeds of the issuance and sale of the Series A
Notes and will have on the Closing Date (after giving effect to the
application of the proceeds from the issuance of the Series A Notes)
sufficient capital for carrying on their respective business and were, at
the time of the incurrence of such indebtedness that will be repaid with
the proceeds of the issuance and sale of the Series A Notes, and will be on
the Closing Date (after giving effect to the application of the proceeds
from the issuance of the Series A Notes) able to pay their respective debts
as they mature. The Company acknowledges that the Initial Purchasers and,
for purposes of the opinions to be delivered to the Initial Purchasers
pursuant to Section 9 hereof, counsel to the Company and the Guarantors and
counsel to the Initial Purchasers will rely upon the accuracy and truth of
the foregoing representations and hereby consents to such reliance.
7. Initial Purchaser's Representations and Warranties. Each of the Initial
Purchasers, severally and not jointly, represents and warrants to the Company
and the Guarantors, and agrees that:
(a) Such Initial Purchaser is a QIB with such knowledge and experience
in financial and business matters as is necessary in order to evaluate the
merits and risks of an investment in the Series A Notes.
(b) Such Initial Purchaser (A) is not acquiring the Series A Notes
with a view to any distribution thereof or with any present intention of
offering or selling any of the Series A Notes in a transaction that would
violate the Act or the securities laws of any state of the United States or
any other applicable jurisdiction and (B) will be reoffering and reselling
the Series A Notes only to (x) QIBs in reliance on the exemption from the
registration requirements of the Act provided by Rule 144A, and (y) in
offshore transactions in reliance upon Regulation S under the Act.
(c) Such Initial Purchaser agrees that no form of general solicitation
or general advertising (within the meaning of Regulation D under the Act)
has been or will be used by such Initial Purchaser or any of its
representatives in connection with the offer and sale of the Series A Notes
pursuant hereto, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine or similar medium or
broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general
advertising.
(d) Such Initial Purchaser agrees that, in connection with Exempt
Resales, such Initial Purchaser will solicit offers to buy the Series A
Notes only from, and will offer to sell the Series A Notes only to,
Eligible Purchasers. Each Initial Purchaser further agrees that it will
offer to sell the Series A Notes only to, and will solicit offers to buy
the Series A Notes only from (A) Eligible Purchasers that the Initial
Purchaser reasonably believes are QIBs, and (B) Regulation S Purchasers, in
each case, that agree that (x) the Series A Notes purchased by them may be
resold, pledged or otherwise transferred within the time period referred to
under Rule 144(k) (taking into account the provisions of Rule 144(d) under
the Act, if applicable) under the Act, as in effect on the date of the
transfer of such Series A Notes, only (I) to the Company or any of its
subsidiaries, (II) to a person whom the seller reasonably believes is a QIB
purchasing for its own account or for the account of a QIB in a transaction
meeting the requirements of Rule 144A under the Act, (III) in an offshore
transaction (as defined in Rule 902 under the Act) meeting the requirements
of Rule 904 of the Act, (IV) in a transaction meeting the requirements of
Rule 144 under the Act, (V) in accordance with another exemption from the
registration requirements of the Act (and based upon an opinion of counsel
acceptable to the Company) or (VI) pursuant to an effective registration
statement and, in each case, in accordance with the applicable securities
laws of any state of the United States or any other applicable jurisdiction
and (y) they will deliver to each person to whom such Series A Notes or an
interest therein is transferred a notice substantially to the effect of the
foregoing.
(e) Such Initial Purchaser and its affiliates or any person acting on
its or their behalf have not engaged or will not engage in any directed
selling efforts within the meaning of Regulation S with respect to the
Series A Notes or the Subsidiary Guarantees.
(f) The Series A Notes offered and sold by such Initial Purchaser
pursuant hereto in reliance on Regulation S have been and will be offered
and sold only in offshore transactions.
(g) The sale of the Series A Notes offered and sold by such Initial
Purchaser pursuant hereto in reliance on Regulation S is not part of a plan
or scheme to evade the registration provisions of the Act.
(h) Such Initial Purchaser agrees that it has not offered or sold and
will not offer or sell the Series A Notes in the United States or to, or
for the benefit or account of, a U.S. Person (other than a distributor), in
each case, as defined in Rule 902 under the Act (i) as part of its
distribution at any time and (ii) otherwise until 40 days after the later
of the commencement of the offering of the Series A Notes pursuant hereto
and the Closing Date, other than in accordance with Regulation S of the Act
or another exemption from the registration requirements of the Act. Such
Initial Purchaser agrees that, during such 40-day restricted period, it
will not cause any advertisement with respect to the Series A Notes
(including any "tombstone" advertisement) to be published in any newspaper
or periodical or posted in any public place and will not issue any circular
relating to the Series A Notes, except such advertisements as permitted by
and include the statements required by Regulation S.
(i) Such Initial Purchaser agrees that, at or prior to confirmation of
a sale of Series A Notes by it to any distributor, dealer or person
receiving a selling concession, fee or other remuneration during the 40-day
restricted period referred to in Rule 903(c)(3) under the Act, it will send
to such distributor, dealer or person receiving a selling concession, fee
or other remuneration a confirmation or notice to substantially the
following effect:
"The Series A Notes covered hereby have not been registered under the
U.S. Securities Act of 1933, as amended (the "Securities Act"), and may not be
offered and sold within the United States or to, or for the account or benefit
of, U.S. persons (i) as part of your distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the Offering and the
Closing Date, except in either case in accordance with Regulation S under the
Securities Act (or Rule 144A or to accredited institutional investors under Rule
501(a)(1), (2), (3) or (7) under the Act in transactions that are exempt from
the registration requirements of the Securities Act), and in connection with any
subsequent sale by you of the Series A Notes covered hereby in reliance on
Regulation S during the period referred to above to any distributor, dealer or
person receiving a selling concession, fee or other remuneration, you must
deliver a notice to substantially the foregoing effect.
Terms used above have the meanings assigned to them in Regulation S."
Such Initial Purchaser agrees that the Series A Notes offered and sold
in reliance on Regulation S will be represented upon issuance by a global
security that may not be exchanged for definitive securities until the
expiration of the 40-day restricted period referred to in Rule 903(c)(3) of the
Act and only upon certification of beneficial ownership of such Series A Notes
by non-U.S. persons or U.S. persons who purchased such Series A Notes in
transactions that were exempt from the registration requirements of the Act.
Such Initial Purchaser acknowledges that the Company and the Guarantors
and, for purposes of the opinions to be delivered to each Initial Purchaser
pursuant to Section 9 hereof, counsel to the Company and the Guarantors and
counsel to the Initial Purchasers will rely upon the accuracy and truth of the
foregoing representations and such Initial Purchaser hereby consents to such
reliance.
8. Indemnification.
(a) The Company and each Guarantor agree, jointly and severally, to
indemnify and hold harmless the Initial Purchasers, their directors, their
officers and each person, if any, who controls such Initial Purchasers
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages, liabilities and
judgments (including, without limitation, any legal or other expenses
incurred in connection with investigating or defending any matter,
including any action, that could give rise to any such losses, claims,
damages, liabilities or judgments) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Offering
Memorandum (or any amendment or supplement thereto), the Preliminary
Offering Memorandum or any Rule 144A Information provided by the Company or
any Guarantor to any holder or prospective purchaser of Series A Notes
pursuant to Section 5(h) or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to the Initial Purchasers furnished in writing to the
Company by such Initial Purchasers; provided, however, that the foregoing
indemnity agreement with respect to any Preliminary Offering Memorandum
shall not inure to the benefit of any Initial Purchaser who failed to
deliver a Final Offering Memorandum, as then amended or supplemented, (so
long as the Final Offering Memorandum and any amendment or supplement
thereto was provided by the Company to the several Initial Purchasers in
the requisite quantity and on a timely basis to permit proper delivery on
or prior to the Closing Date) to the person asserting any losses, claims,
damages, liabilities or judgments caused by any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Offering
Memorandum, or caused by any omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, if such material misstatement or
omission or alleged material misstatement or omission was cured in the
Final Offering Memorandum, as so amended or supplemented.
(b) The Initial Purchasers, severally and not jointly, agree to
indemnify and hold harmless the Company and the Guarantors, and their
respective directors, officers and managers and each person, if any, who
controls (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) the Company or the Guarantors, to the same extent as the
foregoing indemnity from the Company and the Guarantors to the Initial
Purchasers but only with reference, in the case of each Initial Purchaser,
to information relating to the Initial Purchasers furnished in writing to
the Company by such Initial Purchaser, expressly for use in the Preliminary
Offering Memorandum or the Offering Memorandum.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b)
(the "indemnified party"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party")
in writing and the indemnifying party shall assume the defense of such
action, including the employment of counsel reasonably satisfactory to the
indemnified party and the payment of all fees and expenses of such counsel,
as incurred (except that in the case of any action in respect of which
indemnity may be sought pursuant to both Sections 8(a) and 8(b), the
Initial Purchasers shall not be required to assume the defense of such
action pursuant to this Section 8(c), but may employ separate counsel and
participate in the defense thereof, but the fees and expenses of such
counsel, except as provided below, shall be at the expense of the Initial
Purchasers). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of the
indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action
or employ counsel reasonably satisfactory to the indemnified party or (iii)
the named parties to any such action (including any impleaded parties)
include both the indemnified party and the indemnifying party, and the
indemnified party shall have been advised by such counsel that there may be
one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such
action on behalf of the indemnified party). In any such case, the
indemnifying party shall not, in connection with any one action or separate
but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such
fees and expenses shall be reimbursed as they are incurred. Such firm shall
be designated in writing by Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, in the case of the parties indemnified pursuant to Section
8(a), and by the Company, in the case of parties indemnified pursuant to
Section 8(b). The indemnifying party shall indemnify and hold harmless the
indemnified party from and against any and all losses, claims, damages,
liabilities and judgments by reason of any settlement of any action (i)
effected with the written consent of the indemnifying party or (ii)
effected without the written consent of the indemnifying party if the
settlement is entered into more than twenty business days after the
indemnifying party shall have received a request from the indemnified party
for reimbursement for the fees and expenses of counsel (in any case where
such fees and expenses are at the expense of the indemnifying party) and,
prior to the date of such settlement, the indemnifying party shall have
failed to comply with such reimbursement request. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement or compromise of, or consent to the entry of judgment with
respect to, any pending or threatened action in respect of which the
indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims
that are or could have been the subject matter of such action and (ii) does
not include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 8
is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as
a result of such losses, claims, damages, liabilities and judgments (i) in
such proportion as is appropriate to reflect the relative benefits received
by the Company and the Guarantors, on the one hand, and the Initial
Purchasers, severally and not jointly, on the other hand from the offering
of the Series A Notes or (ii) if the allocation provided by clause 8(d)(i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
8(d)(i) above but also the relative fault of the Company and the
Guarantors, on the one hand, and the Initial Purchasers, severally and not
jointly, on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or judgments,
as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Guarantors, on the one hand and
the Initial Purchasers, severally and not jointly, on the other hand, shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Series A Notes (after underwriting discounts and
commissions, but before deducting expenses) received by the Company, and
the total discounts and commissions received severally and not jointly by
the Initial Purchasers bear to the total price to investors of the Series A
Notes, in each case as set forth in the table on the cover page of the
Offering Memorandum. The relative fault of the Company and the Guarantors,
on the one hand, and the Initial Purchasers, severally and not jointly, on
the other hand, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or the Guarantors, on the one hand, or
an Initial Purchaser, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Guarantors and the Initial Purchasers agree
that it would not be just and equitable if contribution pursuant to this Section
8(d) were determined by pro rata allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such indemnified party in connection with investigating or defending any
matter, including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 8, the Initial Purchasers shall not be required to contribute any amount
in excess of the amount by which the total discounts and commissions received by
such Initial Purchasers exceeds the amount of any damages which such Initial
Purchasers have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Initial Purchasers' obligations to contribute
pursuant to this Section 8(d) are several in proportion to the respective
principal amount of Series A Notes purchases by each of the Initial Purchasers
hereunder and not joint.
(e) The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
9. Conditions of Initial Purchasers' Obligations. The obligations of
the Initial Purchasers to purchase the Series A Notes under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and the
Guarantors contained in this Agreement shall be true and correct on the
Closing Date with the same force and effect as if made on and as of the
Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any
downgrading, suspension or withdrawal of, nor shall any notice have been
given of any potential or intended downgrading, suspension or withdrawal
of, or of any review (or of any potential or intended review) for a
possible change that does not indicate the direction of the possible change
in, any rating of the Company or any Guarantor or any securities of the
Company or any Guarantor (including, without limitation, the placing of any
of the foregoing ratings on credit watch with negative or developing
implications or under review with an uncertain direction) by any
"nationally recognized statistical rating organization" as such term is
defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall not
have occurred any change, nor shall any notice have been given of any
potential or intended change, in the outlook for any rating of the Company
or any Guarantor or any securities of the Company or any Guarantor by any
such rating organization and (iii) no such rating organization shall have
given notice that it has assigned (or is considering assigning) a lower
rating to the Notes than that on which the Notes were marketed.
(c) Since the respective dates as of which information is given in the
Offering Memorandum other than as set forth in the Offering Memorandum
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement), (i) there shall not have occurred any change or any
development involving a prospective change in the condition, financial or
otherwise, or the earnings, business, management or operations of the
Company and the Guarantors, taken as a whole, (ii) there shall not have
been any change or any development involving a prospective change in the
capital stock or in the long-term debt of the Company or any of the
Guarantors and (iii) neither the Company nor any of the Guarantors shall
have incurred any liability or obligation, direct or contingent, the effect
of which, in any such case described in clause 9(c)(i), 9(c)(ii) or
9(c)(iii), in your judgment, is material and adverse and, in your judgment,
makes it impracticable to market the Series A Notes on the terms and in the
manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date a certificate dated
the Closing Date, signed by the President and the Chief Financial Officer
of the Company and each of the Guarantors, confirming the matters set forth
in Sections 6(y), 9(a) and 9(b) and stating that each of the Company and
the Guarantors has complied with all the agreements and satisfied all of
the conditions herein contained and required to be complied with or
satisfied on or prior to the Closing Date. The certificate shall
specifically permit Ice, Xxxxxx, Xxxxxxx & Xxxx to rely upon it.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Initial Purchaser), dated the
Closing Date, of Ice, Xxxxxx, Xxxxxxx & Xxxx, counsel for the Company and
the Guarantors, to the effect that:
(I) EACH OF THE COMPANY AND THE GUARANTORS HAS
BEEN DULY INCORPORATED OR FORMED, AS
APPLICABLE, IS VALIDLY EXISTING AS A
CORPORATION OR LIMITED LIABILITY COMPANY, AS
APPLICABLE, UNDER THE LAWS OF ITS
JURISDICTION OF INCORPORATION AND HAS THE
CORPORATE POWER AND AUTHORITY TO CARRY ON
ITS BUSINESS AS DESCRIBED IN THE OFFERING
MEMORANDUM AND TO OWN, LEASE AND OPERATE ITS
PROPERTIES;
(II) EACH OF THE COMPANY AND THE GUARANTORS IS
DULY QUALIFIED AND IS IN GOOD STANDING AS A
FOREIGN CORPORATION OR LIMITED LIABILITY
COMPANY AUTHORIZED TO DO BUSINESS IN EACH
JURISDICTION IN WHICH THE NATURE OF ITS
BUSINESS OR ITS OWNERSHIP OR LEASING OF
PROPERTY REQUIRES SUCH QUALIFICATION, EXCEPT
WHERE THE FAILURE TO BE SO QUALIFIED WOULD
NOT HAVE A MATERIAL ADVERSE EFFECT;
(III) ALL THE OUTSTANDING SHARES OF CAPITAL STOCK
OF THE COMPANY HAVE BEEN DULY AUTHORIZED AND
VALIDLY ISSUED AND ARE FULLY PAID AND
NON-ASSESSABLE;
(IV) EXCEPT AS DISCLOSED IN THE OFFERING
MEMORANDUM, ALL OF THE OUTSTANDING SHARES OF
CAPITAL STOCK AND MEMBERSHIP INTERESTS, AS
APPLICABLE, OF EACH OF THE GUARANTORS HAVE
BEEN DULY AUTHORIZED AND VALIDLY ISSUED AND
ARE FULLY PAID AND NON-ASSESSABLE, AND ARE
OWNED BY THE COMPANY, FREE AND CLEAR OF ANY
LIEN;
(V) THE SERIES A NOTES HAVE BEEN DULY AUTHORIZED
AND, WHEN EXECUTED AND AUTHENTICATED IN
ACCORDANCE WITH THE PROVISIONS OF THE
INDENTURE AND DELIVERED TO AND PAID FOR BY
THE INITIAL PURCHASERS IN ACCORDANCE WITH
THE TERMS OF THIS AGREEMENT, WILL BE
ENTITLED TO THE BENEFITS OF THE INDENTURE
AND WILL BE VALID AND BINDING OBLIGATIONS OF
THE COMPANY, ENFORCEABLE IN ACCORDANCE WITH
THEIR TERMS;
(VI) THE SUBSIDIARY GUARANTEES HAVE BEEN DULY
AUTHORIZED AND, WHEN THE SERIES A NOTES ARE
EXECUTED AND AUTHENTICATED IN ACCORDANCE
WITH THE PROVISIONS OF THE INDENTURE AND
DELIVERED TO AND PAID FOR BY THE INITIAL
PURCHASERS IN ACCORDANCE WITH THE TERMS OF
THIS AGREEMENT, THE SUBSIDIARY GUARANTEES
ENDORSED THEREON WILL BE ENTITLED TO THE
BENEFITS OF THE INDENTURE AND WILL BE VALID
AND BINDING OBLIGATIONS OF THE GUARANTORS,
ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS;
(VII) THE INDENTURE HAS BEEN DULY AUTHORIZED,
EXECUTED AND DELIVERED BY THE COMPANY AND
EACH GUARANTOR AND IS A VALID AND BINDING
AGREEMENT OF THE COMPANY AND EACH GUARANTOR,
ENFORCEABLE AGAINST THE COMPANY AND EACH
GUARANTOR IN ACCORDANCE WITH ITS TERMS;
(VIII) THE NEW CREDIT FACILITY HAS BEEN DULY
AUTHORIZED, EXECUTED AND DELIVERED BY THE
COMPANY AND EACH GUARANTOR AND IS A VALID
AND BINDING AGREEMENT OF THE COMPANY AND
EACH GUARANTOR, ENFORCEABLE AGAINST THE
COMPANY AND EACH GUARANTOR IN ACCORDANCE
WITH ITS TERMS;
(IX) THIS AGREEMENT HAS BEEN DULY AUTHORIZED,
EXECUTED AND DELIVERED BY THE COMPANY
AND THE GUARANTORS;
(X) THE REGISTRATION RIGHTS AGREEMENT HAS BEEN
DULY AUTHORIZED, EXECUTED AND DELIVERED BY
THE COMPANY AND THE GUARANTORS AND IS A
VALID AND BINDING AGREEMENT OF THE COMPANY
AND EACH GUARANTOR, ENFORCEABLE AGAINST THE
COMPANY AND EACH GUARANTOR IN ACCORDANCE
WITH ITS TERMS;
(XI) THE ISSUANCE OF THE SERIES B SENIOR NOTES
HAS BEEN DULY AUTHORIZED;
(XII) THE STATEMENTS UNDER THE CAPTIONS
"REORGANIZATION OF THE COMPANY,"
"DESCRIPTION OF NEW CREDIT FACILITY,"
"DESCRIPTION OF NOTES," AND "CERTAIN U.S.
FEDERAL INCOME TAX CONSIDERATIONS" IN THE
OFFERING MEMORANDUM, INSOFAR AS SUCH
STATEMENTS CONSTITUTE A SUMMARY OF THE LEGAL
MATTERS, DOCUMENTS OR PROCEEDINGS REFERRED
TO THEREIN, FAIRLY PRESENT IN ALL MATERIAL
RESPECTS SUCH
LEGAL MATTERS, DOCUMENTS AND PROCEEDINGS;
(XIII) THE EXECUTION, DELIVERY AND PERFORMANCE
OF THIS AGREEMENT, THE OTHER OPERATIVE
DOCUMENTS AND THE NEW CREDIT FACILITY BY
THE COMPANY AND EACH OF THE GUARANTORS,
THE COMPLIANCE BY THE COMPANY AND EACH OF
THE GUARANTORS WITH ALL PROVISIONS HEREOF
AND THEREOF AND THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY
WILL NOT (I) REQUIRE ANY CONSENT, APPROVAL,
AUTHORIZATION OR OTHER ORDER OF, OR
QUALIFICATION WITH, ANY COURT OR
GOVERNMENTAL BODY OR AGENCY (EXCEPT SUCH
AS MAY BE REQUIRED UNDER THE SECURITIES OR
BLUE SKY LAWS OF THE VARIOUS STATES), (II)
CONFLICT WITH OR CONSTITUTE A BREACH OF ANY
OF THE TERMS OR PROVISIONS OF, OR A DEFAULT
UNDER, THE ARTICLES OF INCORPORATION,
ARTICLES OF ORGANIZATION, BY-LAWS OR
OPERATING AGREEMENT OF THE COMPANY OR ANY OF
THE GUARANTORS OR ANY INDENTURE, LOAN
AGREEMENT, MORTGAGE, LEASE OR OTHER
AGREEMENT OR INSTRUMENT THAT HAS BEEN
IDENTIFIED TO SUCH COUNSEL BY THE COMPANY
TO BE MATERIAL TO THE COMPANY AND THE
GUARANTORS, TAKEN AS A WHOLE, (III) TO OUR
KNOWLEDGE, VIOLATE OR CONFLICT WITH ANY
APPLICABLE LAW OR ANY RULE, REGULATION,
JUDGMENT, ORDER OR DECREE OF ANY COURT OR
ANY GOVERNMENTAL BODY OR AGENCY HAVING
JURISDICTION OVER THE COMPANY, ANY OF THE
GUARANTORS OR THEIR RESPECTIVE PROPERTY, OR
(IV) TO OUR KNOWLEDGE, RESULT IN THE
IMPOSITION OR CREATION OF (OR THE OBLIGATION
TO CREATE OR IMPOSE) A LIEN UNDER, ANY
AGREEMENT OR INSTRUMENT TO WHICH THE COMPANY
OR ANY OF THE GUARANTORS IS A PARTY OR BY
WHICH THE COMPANY OR ANY OF THE GUARANTORS
OR THEIR RESPECTIVE PROPERTY IS BOUND.
(XIV) TO THE BEST OF SUCH COUNSEL'S KNOWLEDGE,
THERE ARE NO LEGAL OR GOVERNMENTAL
PROCEEDINGS PENDING OR THREATENED TO WHICH
THE COMPANY OR ANY OF ITS SUBSIDIARIES IS OR
COULD BE A PARTY OR TO WHICH ANY OF THEIR
RESPECTIVE PROPERTY IS OR COULD BE SUBJECT,
WHICH MIGHT RESULT, SINGLY OR IN THE
AGGREGATE, IN A MATERIAL ADVERSE EFFECT,
OTHER THAN THOSE DISCLOSED IN THE OFFERING
MEMORANDUM.
(XV) NEITHER THE COMPANY NOR ANY GUARANTOR IS
NOR, AFTER GIVING EFFECT TO THE OFFERING AND
SALE OF THE SERIES A NOTES AND THE
APPLICATION OF THE NET PROCEEDS THEREOF AS
DESCRIBED IN THE OFFERING MEMORANDUM, WILL
BE, AN "INVESTMENT COMPANY" AS SUCH TERM IS
DEFINED IN THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED;
(XVI) TO THE BEST OF SUCH COUNSEL'S KNOWLEDGE,
EXCEPT AS PROVIDED IN THE REGISTRATION
RIGHTS AGREEMENT, THERE ARE NO CONTRACTS,
AGREEMENTS OR UNDERSTANDINGS BETWEEN THE
COMPANY OR ANY GUARANTOR AND ANY PERSON
GRANTING SUCH PERSON THE RIGHT TO REQUIRE
THE COMPANY OR SUCH GUARANTOR TO FILE A
REGISTRATION STATEMENT UNDER THE ACT WITH
RESPECT TO ANY SECURITIES OF THE COMPANY OR
SUCH GUARANTOR OR TO REQUIRE THE COMPANY
OR SUCH GUARANTOR TO INCLUDE SUCH SECURITIES
WITH THE NOTES AND SUBSIDIARY GUARANTEES
REGISTERED PURSUANT TO ANY REGISTRATION
STATEMENT;
(XVII) IT IS NOT NECESSARY IN CONNECTION WITH THE
OFFER, SALE AND DELIVERY OF THE SERIES A
NOTES TO THE INITIAL PURCHASERS IN THE
MANNER CONTEMPLATED BY THIS AGREEMENT OR IN
CONNECTION WITH THE EXEMPT RESALES TO
QUALIFY THE INDENTURE UNDER THE TIA;
(XVIII) NO REGISTRATION UNDER THE ACT OF THE SERIES
A NOTES IS REQUIRED FOR THE SALE OF THE
SERIES A NOTES TO THE INITIAL PURCHASERS
AS CONTEMPLATED BY THIS AGREEMENT OR FOR THE
EXEMPT RESALES ASSUMING THAT (I) EACH
INITIAL PURCHASER IS A QIB OR A REGULATION S
PURCHASER, (II) THE ACCURACY OF, AND
COMPLIANCE WITH, THE INITIAL PURCHASERS'
REPRESENTATIONS, WARRANTIES AND COVENANTS
CONTAINED IN SECTION 7 OF THIS AGREEMENT,
(III) THE ACCURACY OF THE REPRESENTATIONS
OF THE COMPANY AND THE GUARANTORS SET FORTH
IN THIS AGREEMENT WITH THE EXCEPTION OF THE
REPRESENTATION IN SECTION 6(II) HEREOF.
(XIX) SUCH COUNSEL HAS NO REASON TO BELIEVE THAT,
AS OF THE DATE OF THE OFFERING MEMORANDUM OR
AS OF THE CLOSING DATE, THE OFFERING
MEMORANDUM, AS AMENDED OR SUPPLEMENTED, IF
APPLICABLE (EXCEPT FOR THE FINANCIAL
STATEMENTS AND OTHER FINANCIAL DATA INCLUDED
THEREIN, AS TO WHICH SUCH COUNSEL NEED NOT
EXPRESS ANY BELIEF) CONTAINS ANY UNTRUE
STATEMENT OF A MATERIAL FACT OR OMITS TO
STATE A MATERIAL FACT NECESSARY IN ORDER TO
MAKE THE STATEMENTS THEREIN, IN THE LIGHT OF
THE CIRCUMSTANCES UNDER WHICH THEY WERE
MADE, NOT MISLEADING.
The opinion described in this Section 9(e) shall be rendered to you at
the request of the Company and the Guarantors and shall so state therein. In
giving such opinion with respect to the matters covered by the last clause of
Section 9(e), Ice, Xxxxxx, Xxxxxxx & Xxxx xxx state that their opinion and
belief are based upon their participation in the preparation of the Offering
Memorandum and any amendments or supplements thereto and review and discussion
of the contents thereof, but are without independent check or verification
except as specified.
(f) You also shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Initial Purchaser), dated the Closing
Date, of Siegel, Moses, Schoenstadt & Xxxxxxx, regulatory counsel for the
Company and the Guarantors, with respect to certain regulatory issues in the
form attached hereto as Exhibit B. The opinion shall be rendered to you at the
request of the Company and the Guarantors and shall so state therein.
(g) The Initial Purchasers shall have received on the Closing Date an
opinion, dated the Closing Date, of Xxxxxx & Xxxxxxx, counsel for the Initial
Purchaser, in form and substance reasonably satisfactory to the Initial
Purchaser.
(h) The Initial Purchasers shall have received, at the time this Agreement
is executed and at the Closing Date, letters dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to the
Initial Purchasers from Xxxx, Sapper & Xxxxxx and Xxxxx & Xxxxx LLP, both
independent public accountants, containing the information and statements of the
type ordinarily included in accountants' "comfort letters" to the Initial
Purchasers with respect to the financial statements and certain financial
information contained in the Offering Memorandum.
(i) The Initial Purchasers shall have received on the Closing Date an
opinion, dated the Closing Date, of Ice, Xxxxxx, Xxxxxxx & Xxxx relating to
certain tax issues in the form of Exhibit C attached hereto.
(j) The Initial Purchasers shall have received an opinion of Michigan
counsel with respect to the due authorization, execution and delivery of the
Operative Documents by NWS Michigan, Inc. in form and substance satisfactory to
the Initial Purchasers.
(k) The Series A Notes shall have been approved by the NASD for trading and to
be duly listed in PORTAL.
(l) The Initial Purchasers shall have received a counterpart, conformed as
executed, of the Indenture which shall have been entered into by the Company,
the Guarantors and the Trustee.
(m) The Company and the Guarantors shall have executed the Registration Rights
Agreement and the Initial Purchasers shall have received an original copy
thereof, duly executed by the Company and the Guarantors.
(n) Neither the Company nor the Guarantors shall have failed at or prior to the
Closing Date to perform or comply with any of the agreements herein contained
and required to be performed or complied with by the Company or the Guarantors,
as the case may be, at or prior to the Closing Date.
(o) The Reorganization shall have occurred as described in the Offering
Memorandum.
(p) The New Credit Facility (as defined in the Offering Memorandum) shall have
been entered into on substantially the same terms described in the Offering
Memorandum.
10. Effectiveness of Agreement and Termination. This Agreement shall become
effective upon the execution and delivery of this Agreement by the parties
hereto.
This Agreement may be terminated at any time on or prior to the Closing Date by
the Initial Purchasers by written notice to the Company if any of the following
has occurred: (i) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in the Initial
Purchaser's judgment, is material and adverse and, in the Initial Purchaser's
judgment, makes it impracticable to market the Series A Notes on the terms and
in the manner contemplated in the Offering Memorandum, (ii) the suspension or
material limitation of trading in securities or other instruments on the New
York Stock Exchange, the American Stock Exchange, the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade or the
Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market, (iii) the
suspension of trading of any securities of the Company or any Guarantor on any
exchange or in the over-the-counter market, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your opinion
materially and adversely affects, or will materially and adversely affect, the
business, prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole, (v) the declaration of a banking
moratorium by either federal or New York State authorities or (vi) the taking of
any action by any federal, state or local government or agency in respect of its
monetary or fiscal affairs which in your opinion has a material adverse effect
on the financial markets in the United States.
If on the Closing Date any one or more of the Initial Purchasers shall fail or
refuse to purchase the Series A Notes which it or they have agreed to purchase
hereunder on such date and the aggregate principal amount of the Series A Notes
which such defaulting Initial Purchaser or Initial Purchasers, as the case may
be, agreed but failed or refused to purchase is not more than one-tenth of the
aggregate principal amount of the Series A Notes to be purchased on such date by
all Initial Purchasers, each non-defaulting Initial Purchaser shall be obligated
severally, in the proportion which the principal amount of the Series A Notes
set forth opposite its name in Schedule B bears to the aggregate principal
amount of the Series A Notes which all the non-defaulting Initial Purchasers, as
the case may be, have agreed to purchase, or in such other proportion as you may
specify, to purchase the Series A Notes which such defaulting Initial Purchaser
or Initial Purchasers, as the case may be, agreed but failed or refused to
purchase on such date; provided that in no event shall the aggregate principal
amount of the Series A Notes which any Initial Purchaser has agreed to purchase
pursuant to Section 2 hereof be increased pursuant to this Section 10 by an
amount in excess of one-ninth of such principal amount of the Series A Notes
without the written consent of such Initial Purchaser. If on the Closing Date
any Initial Purchaser or Initial Purchasers shall fail or refuse to purchase the
Series A Notes and the aggregate principal amount of the Series A Notes with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of the Series A Notes to be purchased by all Initial Purchasers
and arrangements satisfactory to the Initial Purchasers and the Company for
purchase of such the Series A Notes are not made within 48 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Initial Purchaser and the Company. In any such case which does
not result in termination of this Agreement, either you or the Company shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Offering
Memorandum or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Initial Purchaser
from liability in respect of any default of any such Initial Purchaser under
this Agreement.
11. Miscellaneous. Notices given pursuant to any provision of this Agreement
shall be addressed as follows: (i) if to the Company, X.X. Xxx 0000,
Xxxxxxxxxxxx, Xxxxxxx 00000-0000 and (ii) if to the Initial Purchasers, c/x
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Syndicate Department, or in any case to such other
address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations, warranties
and other statements of the Company, the Guarantors and the Initial Purchasers
set forth in or made pursuant to this Agreement shall remain operative and in
full force and effect, and will survive delivery of and payment for the Series A
Notes, regardless of (i) any investigation, or statement as to the results
thereof, made by or on behalf of the Initial Purchasers, the officers or
directors of the Initial Purchasers, any person controlling an Initial
Purchaser, the Company, any Guarantor, the officers or directors of the Company
or any Guarantor, or any person controlling the Company or any Guarantor, (ii)
acceptance of the Series A Notes and payment for them hereunder and (iii)
termination of this Agreement.
If for any reason the Series A Notes are not delivered by or on behalf of the
Company as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 10), the Company and each Guarantor, jointly and
severally, agree to reimburse the Initial Purchasers for all out-of-pocket
expenses (including the fees and disbursements of counsel) incurred by them.
Notwithstanding any termination of this Agreement, the Company shall be liable
for all expenses which it has agreed to pay pursuant to Section 5(i) hereof. The
Company and each Guarantor also agree, jointly and severally, to reimburse each
Initial Purchaser and its officers, directors and each person, if any, who
controls such Initial Purchaser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act for any and all fees and
expenses (including without limitation the fees and expenses of counsel)
incurred by them in connection with enforcing their rights under this Agreement
(including without limitation its rights under Section 8). Each Initial
Purchaser, severally and not jointly in proportion to the amounts on Schedule B,
agrees to reimburse the Company and the Guarantors, and their respective
directors, officers and managers and each person, if any, who controls (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) the Company or the Guarantors for any and all fees and expenses (including
without limitation the fees and expenses of counsel) incurred by them in
connection with enforcing their rights under this Agreement (including without
limitation its rights under Section 8).
Except as otherwise provided, this Agreement has been and is made solely for the
benefit of and shall be binding upon the Company, the Guarantors, the Initial
Purchasers, the Initial Purchasers' directors and officers, any controlling
persons referred to herein, the directors of the Company and the Guarantors and
their respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not include a
purchaser of any of the Series A Notes from the Initial Purchasers merely
because of such purchase.
This Agreement shall be governed and construed in accordance with the laws of
the State of New York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the agreement among the
Company, the Guarantors and the Initial Purchaser.
Very truly yours,
NATIONAL WINE & SPIRITS, INC., an Indiana Corporation
By:/s/ XXXXX X. LACROSSE
Name: Xxxxx X. LaCrosse
Title: Chairman, President and Chief Executive Officer
NATIONAL WINE & SPIRITS CORPORATION, an Indiana Corporation
By:/s/ XXXXX X. LACROSSE
Name: Xxxxx X. LaCrosse
Title: Chairman
NWS, INC., an Illinois Corporation
By:/s/ XXXXX X. LACROSSE
Name: Xxxxx X. LaCrosse
Title: Chairman
NWS MICHIGAN, INC., a Michigan Corporation
By:/s/ XXXXX X. LACROSSE
Name: Xxxxx X. LaCrosse
Title: Chairman
NWS-ILLINOIS, LLC, an Illinois Limited Liability Company
By:/s/ XXXXX X. LACROSSE
Name: Xxxxx X. LaCrosse
Title: Chairman
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION,
on behalf of the Initial Purchasers
By:/s/ XXXXX XXXXXX XXXXXXXX
Name: Xxxxx Xxxxxx Xxxxxxxx
Title: Vice President
SCHEDULE A
Guarantors
NATIONAL WINE & SPIRITS CORPORATION
NWS, INC.
NWS-ILLINOIS, LLC
NWS MICHIGAN, INC.
SCHEDULE B
Principal Amount
Initial Purchaser of Notes
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation................................................... $ 77,000,000
Bear, Xxxxxxx & Co. Inc.................................................... $ 16,500,000
First Chicago Capital Markets, Inc. $ 16,500,000
Total...................................................................... $110,000,000
============
EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT
EXHIBIT B
FORM OF SIEGEL, MOSES, SCHOENSTADT & XXXXXXX OPINION
EXHIBIT C
FORM OF TAX OPINION
