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EXHIBIT 99.3
AMERICAN ARCHITECTURAL PRODUCTS CORPORATION
$125,000,000
11.75% Senior Notes due 2007
PURCHASE AGREEMENT
December 4, 1997
NatWest Capital Markets Limited
▇▇▇▇▇▇▇▇ & Company Securities, Incorporated
c/o NatWest Capital Markets Limited
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Ladies and Gentlemen:
Each of the undersigned hereby confirms its agreement with you
(the "Initial Purchasers"), as set forth below.
1. The Notes. Subject to the terms and conditions herein
contained, American Architectural Products Corporation, a Delaware corporation
(the "Company") proposes to issue and sell to the Initial Purchasers
$125,000,000 aggregate principal amount of its 11.75% Senior Notes due 2007 (the
"Notes"). The Notes are to be issued under an indenture (the "Indenture") to be
dated as of December 10, 1997 between the Company and United States Trust
Company of New York, as trustee (the "Trustee").
The Notes will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the
"Act"), in reliance on exemptions therefrom. The notes will be guaranteed (the
"Notes Guarantee") by each of the Subsidiaries (as defined below) on a senior
basis.
In connection with the sale of the Notes, the Company has
prepared a preliminary offering memorandum dated November 11, 1997 as
supplemented by the
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Supplement to Preliminary Offering Memorandum dated December 4, 1997 (the
"Preliminary Memorandum") and will prepare a final offering memorandum dated
December 4, 1997 (the "Final Memorandum"; the Preliminary Memorandum and the
Final Memorandum each herein being referred to as a "Memorandum") setting forth
or including a description of the terms of the Notes, the terms of the offering
of the Notes, a description of the Company and the Subsidiaries and any material
developments relating to the Company and the Subsidiaries occurring after the
date of the most recent historical financial statements included therein.
The Company and the Initial Purchasers will enter into a
Registration Rights Agreement (the "Registration Rights Agreement") prior to or
concurrently with the issuance of the Notes. Pursuant to the Registration Rights
Agreement, under the circumstances and the terms set forth therein, the Company
will agree to file with the Securities and Exchange Commission (the
"Commission"): (i) a registration statement on Form S-4 (the "Exchange Offer
Registration Statement") relating to a registered Exchange Offer (as defined in
the Registration Rights Agreement) for the Notes under the Act to offer to the
holders of the Notes the opportunity to exchange their Notes for an issue of
notes substantially identical to the Notes that would be registered under the
Act (the "Exchange Notes") (except that (a) interest thereon will accrue from
the last date on which interest was paid on the Notes, or if no such interest
has been paid, from the date of original issuance of the Notes, (b) such
Exchange Notes will not contain restrictions on transfer, and (c) such Exchange
Notes will not contain provisions relating to an increase in their interest rate
under certain circumstances); or (ii) alternatively, in the event that
applicable interpretations of the Commission do not permit the Company to effect
the Exchange Offer or do not permit any holder of the Notes to participate in
the Exchange Offer, a shelf registration statement (the "Shelf Registration
Statement") to cover resales of Notes by such holders who satisfy certain
conditions, including providing certain information in connection with the Shelf
Registration Statement.
2. Representations and Warranties. Each of the Company and the
Subsidiaries, represents and warrants to, and agrees with the Initial Purchasers
that:
(a) Neither the Preliminary Memorandum as of the date thereof
nor the Final Memorandum nor any amendment or supplement thereto as of
the date thereof and, in the case of the Final Memorandum and any
amendment or supplement thereto, at all times subsequent thereto up to
the Closing Date (as defined in Section 3 below) contained or shall
contain any untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth
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in this Section 2(a) do not apply to statements or omissions made in
reliance upon and in conformity with information furnished to the
Company in writing by the Initial Purchasers expressly for use in the
Preliminary Memorandum, the Final Memorandum or any amendment or
supplement thereto. The Final Memorandum conforms in all material
respects to the requirements of the Act and the rules and regulations
promulgated thereunder as if it were a prospectus filed as part of a
registration statement on Form S-1 relating to the Notes.
(b) As of the Closing Date, the Company will have the
authorized and issued capital stock set forth in the Final Memorandum;
the Subsidiaries constitute all of the subsidiaries of the Company; the
Company will own the percentage of the issued and outstanding stock (or
other equity securities) of each of the Subsidiaries as listed on
Schedule 2 hereto; all of the outstanding shares of capital stock of
the Company and the Subsidiaries as of the Closing Date will be duly
authorized and validly issued, will be fully paid and nonassessable
(except with respect to the Company's stock to the extent of loans
outstanding to executive officers as described in the Memorandum) and
will not have been issued in violation of any preemptive or similar
rights; except as set forth in the Final Memorandum, there are no (i)
options, warrants or other rights to purchase from the Company and the
Subsidiaries, (ii) agreements or other obligations of the Company or
any of the Subsidiaries to issue or (iii) other rights to convert any
obligation into, or exchange any securities for, shares of capital
stock of, or other equity securities in, the Company or any of the
Subsidiaries outstanding. The entities listed on Schedule 2 hereto
(collectively, the "Subsidiaries") are the only subsidiaries, direct or
indirect, of the Company. Except as disclosed on Schedule 2, the
Company does not own, directly or indirectly, any capital stock or any
other equity or long-term debt securities or have any equity interests
in any firm, partnership, joint venture, limited liability company or
other entity.
(c) The Company and each of the Subsidiaries has been duly
incorporated, is validly existing and is in good standing as a
corporation under the laws of its jurisdiction of incorporation, with
all requisite corporate power and authority to own its properties and
conduct its business as now conducted, and as described in the Final
Memorandum; each of the Company and the Subsidiaries is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not, individually or in the aggregate,
have a material adverse effect on the general affairs, management,
business, condition (financial or otherwise), prospects or results of
operations of the
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Company and the Subsidiaries, taken as a whole (any such event, a
"Material Adverse Effect").
(d) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Notes. The Notes, when issued, will be in the form contemplated by the
Indenture. The Notes have been duly and validly authorized, executed
and delivered by the Company and, when authenticated by the Notes
Trustee in accordance with the provisions of the Indenture and when
delivered to and paid for by the Initial Purchasers in accordance with
the terms of this Agreement, will have been duly executed, issued and
delivered and will constitute valid and legally binding obligations of
the Company, will entitle the Initial Purchasers to the benefits of the
Indenture and will be enforceable against the Company in accordance
with their terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, fraudulent transfer or
conveyance or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles
(regardless of whether the issue of enforceability is considered in a
proceeding in equity or at law).
(e) The Company and each of the Subsidiaries has all requisite
corporate power and authority to execute, deliver and perform its
obligations under the Indenture. The Indenture meets the requirements
for qualification under the Trust Indenture Act of 1939, as amended
(the "TIA"). The Indenture has been duly and validly authorized,
executed and delivered by the Company and will constitute a valid and
legally binding agreement of the Company, enforceable against the
Company and the Subsidiaries in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent transfer or conveyance or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether the issue of enforceability
is considered in a proceeding in equity or at law).
(f) The Exchange Notes and the Private Exchange Notes (as
defined in the Registration Rights Agreement) have been duly and
validly authorized by the Company, and when the Exchange Notes have
been duly executed and delivered by the Company and authenticated by
the Notes Trustee in accordance with the terms of the Registration
Rights Agreement and the Indenture, will constitute the valid and
legally binding obligations of the Company, entitled to the benefits of
the Indenture, and will be enforceable against the Company in
accordance with their terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization, fraudulent
transfer or conveyance or other similar
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laws affecting the enforcement of creditors' rights generally and by
general equitable principles (regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law).
(g) The Company and the Subsidiaries have all requisite
corporate power and authority to execute, deliver and perform their
obligations under the Registration Rights Agreement. The Registration
Rights Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company enforceable against the Company in accordance
with its terms, except (A) as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, fraudulent transfer or
conveyance or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles
(regardless of whether the issue of enforceability is considered in a
proceeding in equity or at law), and (B) that any rights to indemnity
or contribution thereunder may be limited by federal or state
securities laws or public policy considerations.
(h) Each of the Subsidiaries has all requisite corporate power
and authority to execute, deliver and perform its obligations under the
Subsidiary Guarantee executed by it. Each Subsidiary Guarantee has been
duly and validly authorized, executed and delivered by the applicable
Subsidiary and will constitute a valid and legally binding agreement of
such Subsidiary enforceable against such Subsidiary in accordance with
its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent transfer or
conveyance or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles
(regardless of whether the issue of enforceability is considered in a
proceeding in equity or at law).
(i) The Company and each Subsidiary has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly
authorized, executed and delivered by the Company and each Subsidiary.
(j) No consent, approval, authorization or order of any court
or governmental agency or body or third party is required for the
execution, delivery or performance of this Agreement by the Company and
the Subsidiaries or the consummation by the Company or any Subsidiary
of this Agreement, the Registration Rights Agreement and the Indenture
or the consummation by the
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Company or any of the Subsidiaries of the transactions contemplated
hereby or thereby that are to be completed on or before the Closing
Date, except such as have been obtained or disclosed in the Final
Memorandum and such as may be required under state securities or "Blue
Sky" laws in connection with the purchase and resale of the Notes by
the Initial Purchasers. None of the Company or any of the Subsidiaries
is (i) in violation of its certificate of incorporation or bylaws (or
similar organizational document), (ii) in breach or violation of any
statute, judgment, decree, order, rule or regulation applicable to any
of them or any of their respective properties or assets, or (iii) in
breach of or in default under (nor has any event occurred which, with
notice or passage of time or both, would constitute a default under) or
in violation of any of the terms or provisions of any indenture,
mortgage, deed of trust, loan agreement, note, lease, license,
franchise agreement, permit, certificate, contract or other agreement
or instrument to which any of them is a party or to which any of them
or their respective properties or assets is subject (collectively,
"Contracts") except in the case of clauses (ii) and (iii) above for
such violations, breaches or defaults that would not, individually or
in the aggregate, have a Material Adverse Effect.
(k) The execution, delivery and performance by the Company and
the Subsidiaries of this Agreement, the Indenture, the Registration
Rights Agreement and the Subsidiary Guarantees and the consummation by
the Company and the Subsidiaries of the transactions contemplated
hereby and thereby, will not conflict with or constitute or result in a
breach of or a default under (or an event which with notice or passage
of time or both would constitute a default under) or violation of any
of (i) the terms or provisions of any Contract except such conflicts,
breaches, defaults or violations, that would not, individually or in
the aggregate, have a Material Adverse Effect, (ii) the certificate of
incorporation or by-laws (or similar organizational document) of the
Company or any of the Subsidiaries, or (iii) any statute, judgment,
decree, order, rule or regulation applicable to the Company or any of
the Subsidiaries or any of their respective properties or assets except
such conflicts, breaches, defaults or violations that would not,
individually or in the aggregate, have a Material Adverse Effect.
(l) The audited consolidated financial statements of the
Company, Eagle Window and Door, Inc. and Subsidiaries and ▇▇▇▇▇▇
Building Products Company, Mallyclad Corporation and Vyn-L Corporation,
Forte Computer Easy, Inc. and Subsidiaries, Western Insulated Glass,
Co., Thermetic Glass, Inc., Danvid Company, Inc. and Danvid Window
Company (collectively "Danvid") and Binnings Building Products, Inc.,
("Binnings") included in the
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Preliminary Memorandum and the Final Memorandum present fairly in all
material respects the financial condition, results of operations and
cash flows of such entities at the dates and for the periods to which
they relate and have been prepared in accordance with generally
accepted accounting principles in the United States applied on a
consistent basis except as otherwise stated therein. The summary and
selected financial and statistical data in the Preliminary Memorandum
and the Final Memorandum present fairly in all material respects the
information shown therein and have been prepared and compiled on a
basis consistent with the audited financial statements included
therein, except as otherwise stated therein. Each of BDO ▇▇▇▇▇▇▇, LLP,
▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.L.C., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ L.L.C., Fox Byrd & Golden
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is an independent public accounting firm within
the meaning of the Act and the rules and regulations promulgated
thereunder.
(m) The pro forma financial information included in the
Preliminary Memorandum and the Final Memorandum, other than the "pro
forma as adjusted" financial information (i) complies as to form in all
material respects with the applicable requirements of Regulation S-X
promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), (ii) has been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements, and (iii) has been properly computed on the bases described
therein; the assumptions used in the preparation of the pro forma
financial data and other pro forma financial information included in
the Preliminary Memorandum and the Final Memorandum are reasonable and
the adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein.
(n) There is not pending or, to the knowledge of the Company,
threatened, any action, suit, proceeding, inquiry, investigation or
legislative mandate to which the Company or any of the Subsidiaries is
a party, or to which the property or assets of the Company or any of
the Subsidiaries are subject, before or brought by any court,
arbitrator or governmental agency or body which is reasonably likely
to, individually or in the aggregate, have a Material Adverse Effect or
which seeks to restrain, enjoin, prevent the consummation of or
otherwise challenge the issuance or sale of the Notes to be sold
hereunder or the consummation of the other transactions described in
the Preliminary Memorandum and the Final Memorandum.
(o) Each of the Company and the Subsidiaries owns or possesses
adequate licenses or other rights to use all material patents,
trademarks, service marks, trade names, copyrights and know-how
necessary to conduct the busi-
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nesses now or proposed to be operated by it as described in the
Preliminary Memorandum and the Final Memorandum, except where the
failure to own or possess the same would not, individually or in the
aggregate, have a Material Adverse Effect, and none of the Company nor
any of the Subsidiaries has received any notice of infringement of or
conflict with (or knows of any such infringement of or conflict with)
asserted rights of others with respect to any patents, trademarks,
service marks, trade names, copyrights or know-how which, if such
assertion of infringement or conflict were sustained, would,
individually or in the aggregate, have a Material Adverse Effect.
(p) The Company and each of the Subsidiaries possesses all
licenses, permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings with,
all federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals,
presently required or necessary to own or lease, as the case may be,
and to operate its respective properties and to carry on its respective
businesses as now or proposed to be conducted as described in the
Preliminary Memorandum and the Final Memorandum (collectively, the
"Permits"), except where the failure to obtain such Permits would not,
individually or in the aggregate, have a Material Adverse Effect; each
of the Company and the Subsidiaries has fulfilled and performed all of
its obligations with respect to such Permits and no event has occurred
which allows, or after notice or lapse of time would allow, revocation
or termination thereof or results in any other material impairment of
the rights of the holder of any such Permit except where such failure
or such revocation, termination or impairment would not, individually
or in the aggregate, have a Material Adverse Effect; and none of the
Company or the Subsidiaries has received any notice of any proceeding
relating to revocation or modification of any such Permit, except as
described in the Final Memorandum and except where such revocation or
modification would not, individually or in the aggregate, have a
Material Adverse Effect.
(q) Since the date of the most recent financial statements
appearing in the Final Memorandum, except as described therein, (i)
none of the Company nor the Subsidiaries has incurred any liabilities
or obligations, direct or contingent, or entered into or agreed to
enter into any transactions or contracts (written or oral) not in the
ordinary course of business which liabilities, obligations,
transactions or contracts would, individually or in the aggregate, be
material to the general affairs, management, business, condition
(financial or otherwise), prospects or results of operations of the
Company and the Subsidiaries, either individually or taken as a whole
(a "Material Change"), (ii) none of the Company nor the Subsidiaries
has purchased any of its outstanding
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capital stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock and (iii) other than as
described in the Final Memorandum, there shall not have been any change
in the capital stock or long-term indebtedness of the Company or the
Subsidiaries which would, individually or in the aggregate, constitute
a Material Change.
(r) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
general affairs, management, business, condition, (financial or
otherwise), prospects or results of operations of the Company and the
Subsidiaries, either individually or taken as a whole, from that set
forth in the Preliminary Memorandum and the Final Memorandum.
(s) The Company and each of the Subsidiaries has filed all
necessary federal, state, local and foreign income and franchise tax
returns, and has paid all taxes shown as due thereon; and there is no
tax deficiency that has been asserted against the Company or any of the
Subsidiaries other than tax deficiencies which the Company or such
Subsidiary is contesting in good faith and for which the Company or
such Subsidiary has provided adequate reserves.
(t) The statistical and market-related data included in the
Final Memorandum are based on or derived from sources which the Company
and the Subsidiaries believe to be reliable and accurate.
(u) None of the Company, the Subsidiaries nor any agent acting
on their behalf has taken or will take any action that might cause this
Agreement or the sale of the Notes to violate Regulation G, T, U or X
of the Board of Governors of the Federal Reserve System, in each case
as in effect, or as the same may hereafter be in effect, on the Closing
Date.
(v) Each of the Company and the Subsidiaries has good and
marketable title to all real property and good title to all personal
property described in the Final Memorandum as being owned by it and
good and marketable title to any leasehold estate in the real and
personal property described in the Final Memorandum as being leased by
it free and clear of all liens, charges, encumbrances or restrictions,
except as described in the Final Memorandum or to the extent the
failure to have such title or the existence of such liens, charges,
encumbrances or restrictions would not, individually or in the
aggregate, have a Material Adverse Effect.
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(w) There are no legal or governmental proceedings involving
or affecting the Company or any Subsidiary or any of their respective
properties or assets which would be required to be described in a
prospectus forming part of a registration statement filed with the
Commission pursuant to the Act that are not described in the Final
Memorandum.
(x) Except as would not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect (A) each of the
Company and the Subsidiaries is in compliance with and not subject to
liability under applicable Environmental Laws (as defined below), (B)
each of the Company and the Subsidiaries has made all filings and
provided all notices required under any applicable Environmental Laws,
and has and is in compliance with all Permits required under any
applicable Environmental Laws and each of them is in full force and
effect, (C) there is no civil, criminal or administrative action, suit,
demand, claim, hearing, notice of violation, investigation, proceeding,
notice or demand letter or request for information pending or, to the
knowledge of the Company or any of the Subsidiaries, threatened against
the Company or any of the Subsidiaries under any Environmental Law, (D)
no lien, charge, encumbrance or restriction has been recorded under any
Environmental Law with respect to any assets, facility or property
owned, operated, leased or controlled by the Company or any of the
Subsidiaries, (E) none of the Company or the Subsidiaries has received
notice that it has been identified as a potentially responsible party
under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA") or any comparable state
law, (F) no property or facility of the Company or any of the
Subsidiaries is (i) listed or proposed for listing on the National
Priorities List under CERCLA or is (ii) listed in the Comprehensive
Environmental Response, Compensation, Liability Information System List
promulgated pursuant to CERCLA, or on any comparable list maintained by
any state or local governmental authority.
For purposes of this Agreement, "Environmental Laws" means the
common law and all applicable federal, state and local laws or
regulations, codes, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered thereunder, relating to pollution or
protection of public or employee health and safety or the environment,
including, without limitation, law relating to (i) emissions,
discharges, releases or threatened releases of hazardous materials,
into the environment (including, without limitation, ambient air,
surface water, ground water, land surface or subsurface strata), (ii)
the manufacture, processing, distribution, use, generation, treatment,
storage, disposal, transport or handling of hazardous materials, and
(iii) underground and
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above ground storage tanks, and related piping, and emissions,
discharges, releases or threatened releases therefrom.
(y) Except as described in the Final Memorandum, there is no
strike, labor dispute, slowdown or work stoppage with the employees of
the Company or any of the Subsidiaries which is pending or, to the
knowledge of the Company or any of the Subsidiaries, threatened.
(z) Each of the Company and the Subsidiaries carries insurance
in such amounts and covering such risks as is adequate for the conduct
of its business and the value of its properties. Neither the Company
nor any of the Subsidiaries has received notice from any insurer or
agent of such insurer that capital improvements or other expenditures
are required or necessary to be made in order to continue such
insurance.
(aa) None of the Company nor the Subsidiaries has any material
liability for any prohibited transaction (within the meaning of Section
4975(c) of the Internal Revenue Code of 1986, as amended (the "Code")
or Part 4 of Title I of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")) (or an accumulated funding deficiency
within the meaning of Section 412 of the Code or Section 302 of ERISA)
or any complete or partial withdrawal liability (within the meaning of
Section 4201 of ERISA) with respect to any pension, profit sharing or
other plan which is subject to ERISA, to which the Company or any of
the Subsidiaries makes or ever has made a contribution and in which any
employee of the Company or of any Subsidiary is or has ever been a
participant. With respect to such plans, the Company and each
Subsidiary is in compliance in all material respects with all
applicable provisions of ERISA.
(bb) The Company and each of the Subsidiaries (i) makes and
keeps accurate books and records and (ii) maintains internal accounting
controls which provide reasonable assurance that (A) transactions are
executed in accordance with management's authorization, (B)
transactions are recorded as necessary to permit preparation of its
financial statements and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with management's
authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals.
(cc) None of the Company nor the Subsidiaries will be an
"investment company" or "promoter" or "principal underwriter" for (i)
an "investment company or a company controlled by an investment company
within the
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meaning of the Investment Company Act of 1940, as amended, and the
rules and regulations thereunder or (ii) a "holding company" or a
"subsidiary company" of a holding company or an "affiliate" thereof
within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
(dd) The Notes, the Exchange Notes, the Registration Rights
Agreement and the Indenture conform in all material respects to the
descriptions thereof in the Final Memorandum.
(ee) Except as described in the Final Memorandum, no holder of
securities of the Company nor any of the Subsidiaries will be entitled
to have such securities registered under the registration statements
required to be filed by the Company pursuant to the Registration Rights
Agreement other than as expressly permitted thereby.
(ff) Immediately after the consummation of the transactions
contemplated by this Agreement, the fair value and present fair
saleable value of the assets of each of the Company and the
Subsidiaries (each on a consolidated basis) will exceed the sum of its
stated liabilities and identified contingent liabilities; none of the
Company or the Subsidiaries (each on a consolidated basis) is, nor will
any of the Company or the Subsidiaries (each on a consolidated basis)
be, after giving effect to the execution, delivery and performance of
this Agreement, and the consummation of the transactions contemplated
hereby, (a) left with unreasonably small capital with which to carry on
its business as it is currently or proposed to be conducted, (b) unable
to pay its debts (contingent or otherwise) as they mature or otherwise
become due or (c) otherwise insolvent.
(gg) None of the Company, the Subsidiaries or any of their
respective Affiliates (as defined in Rule 501(b) of Regulation D under
the Act) has directly, or through any agent (other than the Initial
Purchasers pursuant to this Agreement), (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any
"security" (as defined in the Act) which is or could be integrated with
the sale of the Notes in a manner that would require the registration
under the Act of the Notes or (ii) engaged in any form of general
solicitation or general advertising (as those terms are used in
Regulation D under the Act) in connection with the offering of the
Notes or in any manner involving a public offering within the meaning
of Section 4(2) of the Act. The Company has not distributed and will
not distribute any offering material in connection with the offering of
the Notes other than the Final Memorandum and any Preliminary
Memorandum. No securities of the same class as any of the
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Notes have been issued and sold by the Company within the six-month
period immediately prior to the date hereof.
(hh) Assuming the accuracy of the representations and
warranties of the Initial Purchasers in Section 8 hereof, it is not
necessary in connection with the offer, sale and delivery of the Notes
to the Initial Purchasers in the manner contemplated by this Agreement
to register the Notes under the Act or to qualify the Indenture under
the TIA.
(ii) No securities of the Company or any Subsidiary are of the
same class (within the meaning of Rule 144A as promulgated under the
Act ("Rule 144A")) as the Notes and listed on a national securities
exchange registered under Section 6 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or quoted in a U.S. automated
inter-dealer quotation system.
(jj) None of the Company or the Subsidiaries has taken, nor
will any of them take, directly or indirectly, any action designed to,
or that might be reasonably expected to, cause or result in
stabilization or manipulation of the price of the Notes.
(kk) None of the Company or the Subsidiaries, or any person
acting on any of their behalf (other than the Initial Purchasers) has
engaged in any directed selling efforts (as that term is defined in
Regulation S under the Act ("Regulation S")) with respect to the Notes;
and the Company and its Affiliates and any person acting on any of
their behalf (other than the Initial Purchasers or any Affiliate of the
Initial Purchasers) have complied with the offering restrictions
requirement of Regulation S.
(ll) Each of the Preliminary Memorandum and the Final
Memorandum, as of its respective date, contains all of the information
that, if requested by a prospective purchaser of any of the Notes,
would be required to be provided to such prospective purchaser pursuant
to Rule 144A(d)(4) under the Act.
(mm) The Notes satisfy the eligibility requirements of Rule
144A(d)(3) under the Act.
(nn) Neither the Company nor any of the Subsidiaries nor, to
the Company's knowledge, any officer or director purporting to act on
behalf of the Company or any of the Subsidiaries has at any time: (i)
made any contributions to any candidate for political office, or failed
to disclose fully any such contributions, in violation of law, (ii)
made any payment of funds to, or
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received or retained any funds from, any state, federal or foreign
governmental officer or official, or other person charged with similar
public or quasi-public duties, other than payments required or allowed
by applicable law, (iii) violated or is in violation of any provision
of the Foreign Corrupt Practices Act of 1977, (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment
or (v) engaged in any transaction, maintained any bank account or used
any corporate funds except for transactions, bank accounts and funds
which have been and are reflected in the normally maintained books and
records of the Company and the Subsidiaries.
(oo) Except as disclosed in any Memorandum, there are no
material outstanding loans or advances or material guarantees of
indebtedness by the Company or any of its Subsidiaries to or for the
benefit of any of the officers or directors of the Company or any of
its Subsidiaries or any of the members of the families of any of them.
(pp) Neither the Company nor any affiliate of the Company does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Florida Statutes Section 517.075.
(qq) None of the Company or any of the Subsidiaries has
engaged or retained any person, other than NatWest Capital Markets
Limited and ▇▇▇▇▇▇▇▇ & Company Securities, Incorporated (the "Initial
Purchasers"), to act as a financial advisor, underwriter or placement
agent in connection with the issuance of any of the Notes and, except
for the fees and expenses payable in connection with the issuance of
the Notes as described in the Final Memorandum, no person other than
the Initial Purchasers has the right to receive a material amount of
financial advisory, underwriting, placement, finder's or similar fees
in connection with, or as a result of, the issuance of the Notes and
the purchase of the Notes by the Initial Purchasers or the consummation
of the other transactions contemplated hereby; provided, that the
foregoing representations shall not apply to any such fees and expenses
that may be claimed by The ▇▇▇▇▇▇ Group.
(rr) The Company and each Subsidiary Guarantor has all
requisite corporate power and authority to execute, deliver and perform
its obligations under each of (i) the Asset Purchase Agreement, dated
as of November 10, 1997, between the Company, acting through DCI/DCW
Acquisition Corporation, and Danvid, whereby the Company has agreed to
purchase certain of the assets of Danvid and (ii) the Plan and
Agreement of Merger dated as of November 10, 1997, among the Company,
BBPI Acquisition Corporation and
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15
Binnings, whereby the Company has agreed to acquire all of the issued
and outstanding common stock of Binnings, (iii) the Asset Purchase
Agreement, dated as of November 17, 1997, among the Company, American
Glassmith Acquisition Corporation and American Glassmith, Inc.,
("American Glassmith"), whereby the Company has agreed to purchase
certain assets of American Glassmith and (iv) the Agreement, dated as
of October 3, 1997 between the Company, Modern Window Corporation
("Modern"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and
Modern Window Acquisition Corporation whereby the Company has agreed to
purchase certain assets of Modern (collectively, the "Acquisition
Agreements"). Each of the Acquisition Agreements has been duly and
validly authorized, executed and delivered by each of the parties
thereto and will constitute a valid and legally binding agreement of
each of the parties thereto enforceable against each of the parties
thereto in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent transfer or conveyance or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law).
3. Purchase, Sale and Delivery of the Notes. On the basis of
the representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Initial Purchasers, and the Initial Purchasers agree, to
purchase from the Company the principal amount of Notes set forth opposite their
respective names on Schedule 1 hereto at 97% of their principal amount. One or
more certificates in definitive form for the Notes that the Initial Purchasers
have agreed to purchase hereunder, and in such denomination or denominations and
registered in such name or names as each of the Initial Purchasers requests upon
notice to the Company at least 48 hours prior to the Closing Date, shall be
delivered by or on behalf of the Company to the Initial Purchasers, against
payment by or on behalf of such Initial Purchasers of the purchase price
therefor by wire transfer to such account or accounts as the Company shall
specify prior to the Closing Date, or by such means as the parties hereto shall
agree prior to the Closing Date. Such delivery of and payment for the Notes
shall be made at the offices of White & Case on December 10, 1997, or at such
other place, time or date as the Initial Purchasers, on the one hand, and the
Company, on the other hand, may agree upon, such time and date of delivery
against payment being herein referred to as the "Closing Date." The Company will
make such certificate or certificates for the Notes available for inspection and
packaging by the Initial Purchasers at such place as designated by the Initial
Purchasers at least 24 hours prior to the Closing Date.
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4. Offering by the Initial Purchasers. The Initial Purchasers
propose to make an offering of the Notes at the price and upon the terms set
forth in the Final Memorandum, as soon as practicable after this Agreement is
entered into and as in the judgment of the Initial Purchasers is advisable.
5. Covenants of the Company and the Subsidiaries. The Company
and each of the Subsidiaries covenants and agrees with the Initial Purchasers
that:
(a) The Company will not amend or supplement the Final
Memorandum or any amendment or supplement thereto of which the Initial
Purchasers shall not previously have been advised and furnished a copy
for a reasonable period of time prior to the proposed amendment or
supplement and as to which the Initial Purchasers shall not have
consented. The Company will promptly, upon the reasonable request of
the Initial Purchasers or counsel for the Initial Purchasers, make any
amendments or supplements to the Final Memorandum that may be necessary
or advisable in connection with the resale of the Notes by the Initial
Purchasers.
(b) The Company will cooperate with the Initial Purchasers in
arranging for the qualification of the Notes for offering and sale
under the securities or "Blue Sky" laws of such jurisdictions as the
Initial Purchasers may designate and will continue such qualifications
in effect for as long as may be necessary to complete the resale of the
Notes; provided, however, that in connection therewith, the Company
shall not be required to qualify as a foreign corporation or to execute
a general consent to service of process in any jurisdiction or subject
itself to taxation in excess of a nominal dollar amount in any such
jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the
distribution by the Initial Purchasers of the Notes, any event occurs
or information becomes known as a result of which the Final Memorandum
as then amended or supplemented would, in the judgment of the Company
or in the reasonable opinion of counsel for the Initial Purchasers,
include any untrue statement of a material fact, or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if for
any other reason it is necessary at any time to amend or supplement the
Final Memorandum to comply with applicable law, the Company will
promptly notify the Initial Purchasers thereof and will prepare, at the
expense of the Company, an amendment or supplement to the Final
Memorandum that corrects such statement or omission or effects such
compliance.
-16-
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(d) The Company will, without charge, provide to the Initial
Purchasers and to counsel for the Initial Purchasers as many copies of
the Preliminary Memorandum and the Final Memorandum or any amendment or
supplement thereto as the Initial Purchasers may reasonably request.
(e) The Company will apply the net proceeds from the sale of
the Notes substantially as set forth under "Use of Proceeds" in the
Final Memorandum.
(f) For so long as any of the Notes remain outstanding, the
Company will furnish to the Initial Purchasers copies of all reports
and other communications (financial or otherwise) furnished by the
Company to the Notes Trustee, the holders of the Notes and, as soon as
available, copies of any reports or financial statements furnished to
or filed by the Company with the Commission or any national securities
exchange on which any class of securities of the Company may be listed.
(g) For so long as any of the Notes remain outstanding, the
Company will furnish to the Initial Purchasers, as soon as they have
been prepared, a copy of any unaudited interim financial statements of
the Company for any period subsequent to the period covered by the most
recent financial statements appearing in the Final Memorandum.
(h) None of the Company, the Subsidiaries or any of their
Affiliates will sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any "security" (as defined in the
Act) which could be integrated with the sale of any of the Notes in a
manner which would require the registration under the Act of any of the
Notes.
(i) None of the Company nor the Subsidiaries will engage in
any form of "general solicitation" or "general advertising" (as those
terms are used in Regulation D under the Act) in connection with the
offering of the Notes or in any manner involving a public offering of
the Notes within the meaning of Section 4(2) of the Act.
(j) None of the Company, the Subsidiaries nor their Affiliates
nor any person acting on its or their behalf will engage in any
directed selling efforts (as that term is defined in Regulation S) with
respect to the Notes; the Company and its respective Affiliates and any
person acting on their behalf (other than the Initial Purchasers) have
complied with the offering restriction requirements of Regulation S.
-17-
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(k) For so long as any of the Notes remain outstanding, the
Company will make available, upon request, to any seller of Notes the
information specified in Rule 144A(d)(4) under the Act, unless the
Company is then subject to Section 13 or 15(d) of the Exchange Act.
(l) For a period of 180 days from the date of the Final
Memorandum, the Company and the Subsidiaries will not offer for sale,
sell, contract to sell or otherwise dispose of, directly or indirectly,
or file a registration statement for, or announce any offer, sale,
contract for sale of or other disposition of any debt securities issued
or guaranteed by the Company or any of its subsidiaries (other than the
Exchange Notes) without the prior written consent of the Initial
Purchasers.
(m) During the period from the Closing Date until two years
after the Closing Date, without the prior written consent of the
Initial Purchasers, the Company and the Subsidiaries will not, and will
not permit any of their affiliates (as defined in Rule 144 under the
Act) to, resell any of the Notes that have been reacquired by them,
except for Notes purchased by the Company or any of its affiliates and
resold in a transaction registered under the Act.
(n) In connection with the offering of the Notes, until the
Initial Purchasers shall have notified the Company of the completion of
the resale of the Notes, the Company and the Subsidiaries will not, and
will cause their affiliated purchasers (as defined in the Exchange Act)
not to, either alone or with one or more other persons, bid for or
purchase, for any account in which it or any of its affiliated
purchasers has a beneficial interest, any Notes, or attempt to induce
any person to purchase any Notes; and will not, and cause its
affiliated purchasers not to, make bids or purchase for the purpose of
creating actual, or apparent, active trading in or of raising the price
of the Notes.
(o) Except as contemplated by the Final Memorandum, the
Company and the Subsidiaries will not take any action prior to the
execution and delivery of the Indenture which, if taken after such
execution and delivery, would have violated any of the covenants
contained therein.
(p) The Company and the Subsidiaries will not take any action
prior to Closing Date which would require the Final Memorandum to be
amended or supplemented pursuant to Section 5(c).
(q) Prior to the Closing Date, the Company and the
Subsidiaries will not issue any press release or other communication
directly or indirectly or hold any
-18-
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press conference with respect to the Company, its condition, financial
or otherwise, or earnings, business affairs or business prospects
(except for routine oral marketing communications in the ordinary
course of business and consistent with the past practices of the
Company and of which the Initial Purchasers are notified), without the
prior written consent of the Initial Purchasers, unless in the judgment
of the Company and its counsel, after notification to the Initial
Purchasers, such press release or communication is required by law.
(r) The Company will use its best efforts to permit the Notes
to be designated PORTAL securities in accordance with the rules and
regulations adopted by the NASD relating to trading in the Private
Offerings, Resales and Trading through Automated Linkages market (the
"Portal Market") and permit the Notes to be eligible for clearance and
settlement through the Depository Trust Company ("DTC").
6. Expenses. The Company and the Subsidiaries agree, jointly
and severally, to pay all costs and expenses incident to the performance of
their obligations under this Agreement, whether or not the transactions
contemplated herein are consummated or this Agreement is terminated pursuant to
Section 11 hereof, including all costs and expenses incident to (i) the
printing, word processing or other production of documents with respect to the
transactions contemplated hereby, including any costs of printing the
Preliminary Memorandum and the Final Memorandum and any amendment or supplement
thereto, and any "Blue Sky" memoranda, (ii) all arrangements relating to the
delivery to the Initial Purchasers of copies of the foregoing documents, (iii)
the fees and disbursements of counsel, accountants and any other experts or
advisors retained by the Company, (iv) preparation (including printing),
issuance and delivery to the Initial Purchasers of the Notes, (v) the
qualification of the Notes under state securities and "Blue Sky" laws, including
filing fees and reasonable fees and disbursements of counsel for the Initial
Purchasers relating thereto, (vi) expenses in connection with any meetings with
prospective investors in the Notes, (vii) fees and expenses of the Trustee
(including reasonable fees and expenses of counsel), (viii) all expenses and
listing fees incurred in connection with the application for quotation of the
Notes on the PORTAL Market, (ix) all expenses incurred in connection with the
approval of the Notes for book-entry transfer by DTC, (x) the reasonable fees
and disbursements of legal counsel retained by the Initial Purchasers, (xi) all
other reasonable out-of-pocket expenses of the Initial Purchasers (including,
without limitation, all road show expenses) incurred by the Initial Purchasers
or any of their affiliates in connection with, or arising out of, the offering
and sale of the Notes and (xii) any fees charged by investment rating agencies
for the rating of the Notes. If the sale of the Notes provided for herein is not
consummated because any condition to the obligations of the Initial Purchasers
set forth in Section 7 hereof is not satisfied, because this
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Agreement is terminated pursuant to Section 11 or because of any failure,
refusal or inability on the part of the Company to perform all obligations and
satisfy all conditions on their part to be performed or satisfied hereunder
(other than solely by reason of a default by the Initial Purchasers of their
obligations hereunder after all conditions hereunder have been satisfied in
accordance herewith), the Company agrees to promptly reimburse the Initial
Purchasers upon demand for all out-of-pocket expenses (including all reasonable
fees, disbursements and charges of White & Case and ▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.) that
shall have been incurred by the Initial Purchasers in connection with the
proposed purchase and sale of the Notes.
7. Conditions of the Initial Purchasers' Obligations. The
obligation of the Initial Purchasers to purchase and pay for the Notes shall, in
their sole discretion, be subject to the satisfaction or waiver of the following
conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have
received the opinion, dated as of the Closing Date and addressed to the
Initial Purchasers, of Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for
the Company, in form and substance satisfactory to counsel to the
Initial Purchasers, dated the Closing Date, substantially to the effect
that:
(i) The Company and each of the Subsidiaries has been
duly organized under the laws of a state within the United
States of America, is validly existing and is in good standing
as a corporation under the laws of its jurisdiction of
incorporation, with all requisite corporate power and
authority to own, lease and operate its properties and conduct
its business as now conducted, and as described in the Final
Memorandum; each of the Company and the Subsidiaries is duly
qualified to do business as a foreign corporation in good
standing in all other jurisdictions where, to the knowledge of
such counsel, the ownership or leasing of its properties or
the conduct of its business requires such qualification,
except where the failure to be so qualified would not,
individually or in the aggregate, have a Material Adverse
Effect.
(ii) The Company has the authorized and, to the
knowledge of such counsel, issued capital stock set forth in
the Final Memorandum. The Company owns all of the outstanding
capital stock of the Subsidiaries. All of the outstanding
shares of capital stock of the Company and the Subsidiaries as
of the Closing Date are duly authorized and validly issued,
are fully paid and nonassessable and were not issued
-20-
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in violation of any preemptive or similar rights; except as
set forth in the Final Memorandum, to the knowledge of such
counsel, there are no (i) options, warrants or other rights to
purchase from the Company and the Subsidiaries, (ii)
agreements or other obligations of the Company or any of the
Subsidiaries to issue or (iii) other rights to convert any
obligation into, or exchange any securities for, shares of
capital stock of, or other equity securities in, the Company
or any of the Subsidiaries outstanding.
(iii) The Company has all requisite corporate power
and authority to execute, deliver and perform its obligations
under the Notes. The Notes, when issued, will be in the form
contemplated by the Indenture. The Notes have been duly and
validly authorized, executed and delivered by the Company and,
when authenticated by the Notes Trustee in accordance with the
provisions of the Indenture and when delivered to and paid for
by the Initial Purchasers in accordance with the terms of this
Agreement, will constitute valid and legally binding
obligations of the Company, will be entitled to the benefits
of the Indenture and will be enforceable against the Company
in accordance with their terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent transfer or conveyance or other
similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles (regardless of
whether the issue of enforceability is considered in a
proceeding in equity or at law).
(iv) The Global Note (as such term is defined in the
Indenture) is in the form contemplated by the Indenture. The
Global Note has been duly and validly authorized, executed and
delivered by the Company and, when authenticated by the Notes
Trustee in accordance with the provisions of the Indenture and
when delivered to and paid for by the Initial Purchasers in
accordance with the terms of this Agreement, will constitute
valid and legally binding obligations of the Company, will be
entitled to the benefits of the Indenture and will be
enforceable against the Company in accordance with their
terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent transfer or
conveyance or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable
principles (regardless of whether the issue of enforceability
is considered in a proceeding in equity or at law).
-21-
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(v) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations
under the Indenture. The Indenture meets the requirements for
qualification under the TIA. The Indenture has been duly and
validly authorized, executed and delivered by the Company and
constitutes a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with
its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, fraudulent transfer
or conveyance or other similar laws affecting the enforcement
of creditors' rights generally and by general equitable
principles (regardless of whether the issue of enforceability
is considered in a proceeding in equity or at law).
(vi) The Exchange Notes and the Private Exchange
Notes have been duly and validly authorized by the Company,
and when the Exchange Notes have been duly executed and
delivered by the Company and authenticated by the Notes
Trustee in accordance with the terms of the Registration
Rights Agreement and the Indenture, will constitute the valid
and legally binding obligations of the Company, entitled to
the benefits of the Indenture, and enforceable against the
Company in accordance with their terms, except as the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent transfer or conveyance
or other similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles
(regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law);
(vii) The Company has all requisite corporate power
and authority to execute, deliver and perform its obligations
under the Registration Rights Agreement. The Registration
Rights Agreement has been duly and validly authorized,
executed and delivered by the Company and constitutes a valid
and legally binding agreement of the Company enforceable
against the Company in accordance with its terms, except (A)
as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent transfer or conveyance
or other similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles
(regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law), and (B) that
any rights to indemnity or contribution thereunder may be
limited by federal or state securities laws or public policy
considerations.
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(viii) Each of the Subsidiaries has all requisite
corporate power and authority to execute, deliver and perform
its obligations under its respective Subsidiary Guarantee.
Each Subsidiary Guarantee has been duly and validly
authorized, executed and delivered by the applicable
Subsidiary and will constitute a valid and legally binding
agreement of such Subsidiary enforceable against such
Subsidiary in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent transfer or conveyance
or other similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles
(regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law).
(ix) The Company has all requisite corporate power
and authority to execute, deliver and perform its obligations
under this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(x) No consent, approval, authorization or order of
any court or governmental agency or body or, to the knowledge
of such counsel, third party is required for the execution,
delivery or performance by the Company or any Subsidiary of
this Agreement, the Registration Rights Agreement or the
consummation by the Company or any of the Subsidiaries of the
transactions contemplated hereby or thereby that are to be
completed prior to or on the date hereof, except such as have
been obtained or disclosed in the Final Memorandum and such as
may be required under state securities or "Blue Sky" laws in
connection with the purchase and resale of the Notes by the
Initial Purchasers. None of the Company or any of the
Subsidiaries is (i) in violation of its certificate of
incorporation or bylaws (or similar organizational document),
(ii) in breach or violation of any statute, judgment, decree,
order, rule or regulation known to such counsel applicable to
any of them or any of their respective properties or assets,
or (iii) in breach of or in default under (nor has any event
occurred which, with notice or passage of time or both, would
constitute a default under) or in violation of any of the
terms or provisions of any Contracts known to such counsel.
(xi) The execution, delivery and performance by the
Company and the Subsidiaries of this Agreement, the Indenture,
the Registration Rights Agreement and the Subsidiary
Guarantees and the consummation
-23-
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by the Company and the Subsidiaries of the transactions
contemplated hereby and thereby, and the fulfillment of the
terms hereof and thereof, will not conflict with or constitute
or result in a breach of or a default under (or an event which
with notice or passage of time or both would constitute a
default under) or violation of any of (i) the terms or
provisions of any Contract known to such counsel, except such
conflicts, breaches, defaults or violations, that would not,
individually or in the aggregate, have a Material Adverse
Effect, (ii) the certificate of incorporation or by-laws (or
similar organizational document) of the Company or any of the
Subsidiaries, or (iii) any statute, judgment, decree, order,
rule or regulation known to such counsel and applicable to the
Company or any of the Subsidiaries or any of their respective
properties or assets except such conflicts, breaches, defaults
or violations that would not, individually or in the
aggregate, have a Material Adverse Effect.
(xii) To the knowledge of such counsel, there is not
pending or threatened, any action, suit, proceeding, inquiry,
investigation or legislative mandate to which the Company or
any of the Subsidiaries is a party, or to which the property
or assets of the Company or any of the Subsidiaries are
subject, before or brought by any court, arbitrator or
governmental agency or body which are reasonably likely to,
individually or in the aggregate, have a Material Adverse
Effect or which seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of
the Notes to be sold hereunder or the consummation of the
other transactions described in the Preliminary Memorandum and
the Final Memorandum.
(xiii) Neither the transactions contemplated by this
Agreement nor the sale, issuance, execution or delivery of the
Notes will violate Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System, in each case as in
effect, or as the same may hereafter be in effect, on the date
hereof.
(xiv) To the knowledge of such counsel, there are no
legal or governmental proceedings involving or affecting the
Company or any Subsidiary or any of their respective
properties or assets which would be required to be described
in a prospectus forming part of a registration statement filed
with the Commission pursuant to the Act that are not described
in the Preliminary Memorandum or the Final Memorandum.
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(xv) Neither the Company nor any of the Subsidiaries
is or immediately after the sale of the Notes to be sold
hereunder and the application of the proceeds from such sale
(as described in the Final Memorandum under the caption "Use
of Proceeds") will be (i) an "investment company" or
"promoter" or principal "underwriter" for an "investment
company" or a company controlled by an investment company
within the meaning of the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder or (ii) a
"holding company" or a "subsidiary company" of a holding
company or an "affiliate" thereof within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
(xvi) The Notes, the Exchange Notes, the Registration
Rights Agreement and the Indenture will conform in all
material respects to the descriptions thereof in the Final
Memorandum.
(xvii) To the knowledge of such counsel, no holder of
securities of the Company nor any of the Subsidiaries will be
entitled to have such securities registered under the
registration statements required to be filed by the Company
pursuant to the Registration Rights Agreement other than as
expressly permitted thereby.
(xviii) The Notes satisfy the eligibility
requirements of Rule 144A(d)(3) under the Act.
(xix) The statements in the Final Memorandum under
the caption "Description of Capital Stock", and "Description
of Notes", insofar as they describe the provisions of the
documents and instruments therein described, constitute fair
summaries thereof and are accurate in all material respects;
(xx) No registration under the Act of the Notes is
required in connection with the sale of the Notes to the
Initial Purchasers or the initial resale of the Notes by the
Initial Purchasers in the manner contemplated by this
Agreement and the Final Memorandum and prior to the
commencement of the Notes Exchange Offer and the Debenture
Exchange Offer or the effectiveness of the Shelf Registration
Statement or the Debenture Shelf Registration Statement (as
defined in the Registration Rights Agreement or the Debenture
Registration Rights Agreement, as the case may be), it being
understood that no opinion is expressed as to any subsequent
resale of the Notes, and the Indenture
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and the Subordinated Indenture are not required to be
qualified under the TIA, in each case assuming (i) that the
purchasers who buy such Notes in the initial resale thereof
are qualified institutional buyers as defined in Rule 144A
promulgated under the Act ("QIBs") or accredited investors as
defined in Rule 501(a) (1), (2), (3) or (7) promulgated under
the Act ("Accredited Investors"), (ii) the accuracy of the
Initial Purchasers's representations in Section 8 hereof and
those of the Company contained in this Agreement regarding the
absence of a general solicitation in connection with the sale
of such Notes to the Initial Purchasers and the initial resale
thereof and (iii) the due performance by the Initial
Purchasers of the agreements set forth in Section 8 hereof.
(xxi) The Company has all requisite corporate power
and authority to execute, deliver and perform its obligations
under the Acquisition Agreements. Each of the Acquisition
Agreements has been duly and validly authorized, executed and
delivered by the Company and constitutes a valid and legally
binding agreement of the Company enforceable against the
Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent transfer or conveyance
or other similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles
(regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law).
(xxii) To the knowledge of such counsel, the Company
and each of the Subsidiaries possesses all Permits presently
required or necessary to own or lease, as the case may be, and
to operate its respective properties and to carry on its
respective businesses as now or proposed to be conducted as
described in the Preliminary Memorandum and the Final
Memorandum, each of the Company and the Subsidiaries has
fulfilled and performed all of its obligations with respect to
such Permits and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination
thereof or results in any other material impairment of the
rights of the holder of any such Permit, and none of the
Company or the Subsidiaries has received any notice of any
proceeding relating to revocation or modification of any such
Permit, except as described in the Final Memorandum.
In rendering such opinion, such counsel may (A) state that
such counsel's opinion is limited to the federal law of the United
States and the laws of the States of Ohio and New York and the General
Corporation Law of the State of
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Delaware, (B) as to matters involving the application of laws of any
jurisdiction other than the State of New York, the State of Ohio, the
United States or the corporation law of the State of Delaware, to the
extent they deem proper and specified in such opinion, upon the opinion
of other counsel of good standing whom they believe to be reliable and
who are satisfactory to counsel for the Initial Purchasers and (C) as
to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials.
In addition to the foregoing, such counsel shall state that is
has participated in conferences with directors, executive officers and
other representatives of the Company, representatives of the Company's
independent public accountants, at which conferences the contents of
the Final Memorandum and related matters were discussed, and although
such counsel has not independently verified and has not passed upon or
assumed any responsibility for the accuracy, completeness or fairness
of the statements contained in such documents, no facts have come to
such counsel's attention to lead it to believe that the Final
Memorandum and any further amendments or supplements thereto as of
their respective dates and on the date of such opinion letter contained
or contains an untrue statement of a material fact or omitted or omits
to state a material fact required to be stated therein, or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading (it being understood that such counsel
need not express any view with respect to the financial statements and
related notes, the financial statement schedules and the other
financial, statistical and accounting data included in the Final
Memorandum). The opinion of Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. described
in this Section shall be rendered to the Initial Purchasers at the
request of the Company and shall so state therein.
(b) On the Closing Date, the Initial Purchasers shall have
received opinions, in form and substance satisfactory to the Initial
Purchasers, dated as of the Closing Date and addressed to the Initial
Purchasers, of White & Case and ▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. counsel for the
Initial Purchasers, with respect to certain legal matters relating to
this Agreement and such other related matters as the Initial Purchasers
may reasonably require. In rendering such opinion, White & Case and
▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. shall have received and may rely upon such
certificates and other documents and information as they may reasonably
request to pass upon such matters.
(c) On the Closing Date, the Initial Purchasers shall have
received good standing certificates for the Company and the
Subsidiaries dated as of a date within five (5) business days prior to
the Closing Date.
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(d) On the Closing Date, the Initial Purchasers shall have
received the following documents duly authorized, executed and
delivered by each of the parties thereto, in form and substance
satisfactory for counsel to the Initial Purchasers, dated the Closing
Date:
(i) the Subsidiary Guarantees;
(ii) the Indenture; and
(iii) the Registration Rights Agreement.
(e) The Initial Purchasers shall have received from BDO
▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP comfort letters dated the date
hereof and the Closing Date, in form and substance satisfactory to
counsel for the Initial Purchasers, which describe the procedures as
the Initial Purchasers may request and BDO ▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP are willing to perform and report upon.
(f) The representations and warranties of the Company and the
Subsidiaries contained in this Agreement shall be true and correct on
and as of the date hereof and on and as of the Closing Date as if made
on and as of the Closing Date; the statements of the Company's or any
Subsidiaries' officers made pursuant to any certificate delivered in
accordance with the provisions hereof shall be true and correct on and
as of the date made and on and as of the Closing Date; the Company and
the Subsidiaries shall have performed all covenants and agreements and
satisfied all conditions on their part to be performed or satisfied
hereunder at or prior to the Closing Date; and, except as described in
the Final Memorandum (exclusive of any amendment or supplement thereto
after the date hereof), subsequent to the date of the most recent
financial statements in such Final Memorandum, there shall have been no
event or development that, individually or in the aggregate, has had,
or would be reasonably likely to have, a Material Adverse Effect.
(g) The sale of the Notes hereunder shall not be enjoined
(temporarily or permanently) on the Closing Date.
(h) The Notes shall have been approved by the NASD for trading
in the PORTAL Market.
(i) There shall not have occurred any invalidation of Rule
144A under the Act by any court or any withdrawal or proposed
withdrawal of any rule or
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regulation under the Act or the Exchange Act by the Commission or any
amendment or proposed amendment thereof by the Commission which in the
judgment of the Initial Purchasers would materially impair the ability
of the Initial Purchasers to purchase, hold or effect resales of the
Notes as contemplated hereby.
(j) There shall not have occurred any change, or any
development involving a prospective change, in the general business
affairs, condition (financial or otherwise), prospects or results of
operations, of the Company and the Subsidiaries, taken as a whole, from
that set forth in the Final Memorandum that constitutes a Material
Adverse Effect and that makes it, in the Initial Purchasers' judgment,
impracticable to market the Notes on the terms and in the manner
contemplated in the Final Memorandum.
(k) Subsequent to the date of the most recent financial
statements in the Final Memorandum (exclusive of any amendment or
supplement thereto after the date hereof), the conduct of the business
and operations of the Company and the Subsidiaries shall not have been
interfered with by strike, fire, flood, hurricane, accident or other
calamity (whether or not insured) or by any court or governmental
action, order or decree, and, except as otherwise stated therein, the
properties of the Company and the Subsidiaries shall not have sustained
any loss or damage (whether or not insured) as a result of any such
occurrence, except any such interference, loss or damage which would
not, individually or in the aggregate, have a Material Adverse Effect.
(l) No securities of the Company or any Subsidiary shall have
been downgraded or placed on any "watch list" for possible downgrading
by any nationally recognized statistical rating organization.
(m) The Initial Purchaser shall have received certificates of
the Company, dated the Closing Date, signed by its President and the
Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Company
and the Subsidiaries contained in this Agreement are true and
correct as of the date hereof and as of the Closing Date, and
the Company and the Subsidiaries have performed all covenants
and agreements and satisfied all conditions on their part to
be performed or satisfied hereunder at or prior to the Closing
Date;
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(ii) At the Closing Date, since the date hereof or
since the date of the most recent financial statements in the
Final Memorandum (exclusive of any amendment or supplement
thereto after the date hereof), no event or events have
occurred, no information has become known and no condition
exists that, individually or in the aggregate, has had, or
could reasonably be expected to have, a Material Adverse
Effect;
(iii) The sale of the Notes hereunder has not been
enjoined (temporarily or permanently); and
(iv) Such other information as the Initial Purchaser
may reasonably request.
(n) On or before the Closing Date, each of the acquisitions of
Danvid and Binnings shall have been consummated in accordance with the
terms of their respective Acquisition Agreements.
(o) The Initial Purchasers shall have received a certificate
from the corporate secretary of the Company, dated the Closing Date,
attaching certified copies of (i) all resolutions of the Board of
Directors of the Company and the Subsidiaries authorizing the
transactions contemplated by this Agreement and the acquisitions
described in (t) above, including, without limitation, approving the
offering of the Notes, the entering into this Agreement, the Indenture
and the Registration Rights Agreement and (ii) the certificate of
incorporation and by-laws of the Company and the Subsidiaries and
certifying the names and true signatures of the officers of the Company
and each of the Subsidiaries.
On or before the Closing Date, the Initial Purchasers and
counsel for the Initial Purchasers shall have received such further documents,
opinions, certificates, letters and schedules or instruments relating to the
business, corporate, legal and financial affairs of the Company and the
Subsidiaries as they shall have theretofore reasonably requested from the
Company and the Subsidiaries.
All such documents, opinions, certificates, letters, schedules
or instruments delivered pursuant to this Agreement will comply with the
provisions hereof only if they are reasonably satisfactory in all material
respects to the Initial Purchasers and counsel for the Initial Purchasers. The
Company and the Subsidiaries shall furnish to the Initial Purchasers such
conformed copies of such documents, opinions, certificates, letters, schedules
and instruments in such quantities as the Initial Purchasers shall reasonably
request.
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8. Offering of Notes; Restrictions on Transfer. Each Initial
Purchaser agrees with the Company that (i) it has not and will not solicit
offers for, or offer or sell, the Notes by any form of general solicitation or
general advertising (as those terms are used in Regulation D under the Act) or
in any manner involving a public offering within the meaning of Section 4(2) of
the Act; (ii) it has and will solicit offers for the Notes only from, and will
offer the Notes only to (A) in the case of offers inside the United States, (x)
persons whom such Initial Purchaser reasonably believes to be QIBs or, if any
such person is buying for one or more institutional accounts for which such
person is acting as fiduciary or agent, only when such person has represented to
such Initial Purchaser that each such account is a QIB, to whom notice has been
given that such sale or delivery is being made in reliance on Rule 144A, and, in
each case, in transactions under Rule 144A or (y) a limited number of other
Accredited Investors reasonably believed by such Initial Purchaser to be
Accredited Investors that, prior to their purchase of the Notes, deliver to the
Initial Purchasers a letter containing the representations and agreements set
forth in Appendix A to the Final Memorandum and (B) in the case of offers
outside the United States, persons other than U.S. persons ("foreign
purchasers," which term shall include dealers or other professional fiduciaries
in the United States acting on a discretionary basis for foreign beneficial
owners (other than an estate or trust)); provided, however, that, in the case of
the case of this clause (B), in purchasing such Notes such persons are deemed to
have represented and agreed as provided under the caption "Transfer Restrictions
on the Notes."
Each Initial Purchaser represents and warrants that it is an
Accredited Investor, with such knowledge and experience in financial and
business matters as are necessary in order to evaluate the merits and risks of
an investment in the Notes. Each Initial Purchaser agrees to comply with the
applicable provisions of Rule 144A, Rule 144 and Regulation S under the Act.
Each Initial Purchaser hereby acknowledges that the Company and, for purposes of
the opinions to be delivered to the Initial Purchasers pursuant to Section 7(a)
hereof, counsel to the Company will rely upon the accuracy and truth of the
representations contained in this Section 8 and each Initial Purchaser hereby
consents to such reliance.
9. Indemnification and Contribution. (a) Each of the Company
and the Subsidiaries agrees to indemnify and hold harmless the Initial
Purchasers and their respective affiliates, directors, officers, agents,
representatives general partners and employees of such Initial Purchaser or its
affiliates, and each other person, if any, who controls such Initial Purchaser
or its affiliates within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, to the full extent lawful against any losses, claims, damages,
expenses or liabilities (or actions in respect thereof, including, without,
limitation, shareholder derivative actions and arbitration proceedings) to which
any Initial Purchaser or such other person may become subject under the Act, the
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Exchange Act or otherwise, insofar as any such losses, claims, damages, expenses
or liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in any Memorandum or any amendment or
supplement thereto or any application or other document, or any
amendment or supplement thereto, executed by the Company or any
Subsidiary or based upon written information furnished by or on behalf
of the Company or any Subsidiary filed in any jurisdiction in order to
qualify the Notes under the securities or "Blue Sky" laws thereof or
filed with any securities association or securities exchange (each an
"Application");
(ii) the omission or alleged omission to state, in any
Memorandum or any amendment or supplement thereto or any Application, a
material fact required to be stated therein or necessary to make the
statements therein not misleading; or
(iii) any breach of any of the representations and warranties
of the Company or any Subsidiary set forth in this Agreement, the
Indenture, the Registration Rights Agreement and the Subsidiary
Guarantees,
and, subject to the provisions thereof, will reimburse, as incurred, the Initial
Purchasers and each such other person for any reasonable legal or other expenses
incurred by the Initial Purchasers or such other person in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action; provided,
however, neither the Company nor any Subsidiary will be liable in any such case
to the extent that any such loss, claim, damage, or liability arises out of or
is based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in any Memorandum or any amendment or supplement thereto
or any Application in reliance upon and in conformity with written information
furnished to the Company by the Initial Purchasers specifically for use therein.
This indemnity agreement will be in addition to any liabilities or obligations
that the Company or any Subsidiary may otherwise have to the indemnified
parties. Subject to Section 9(c), the Company or any Subsidiary shall not be
liable under this Section 9 for any settlement of any claim or action effected
without their prior consent, which shall not be unreasonably withheld. The
indemnity set forth in this Subsection (a), as to the Preliminary Memorandum,
shall not inure to the benefit of any Initial Purchaser, or any of the
affiliates, directors, officers, agents, representatives, general partners or
employees of such Initial Purchaser or its affiliates, on account of any loss,
claim, damage or liability arising from the sale of Notes to any person by such
Initial Purchaser is such Initial Purchaser failed to send or give a copy of the
Final
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Memorandum (as the same may be supplemented or amended) to such person at or
prior to the written confirmation of the sale of the Notes to such Person and
the untrue statement or alleged untrue statement or omission or alleged omission
of a material fact in such Preliminary Memorandum was corrected in the Final
Memorandum, unless such failure resulted from noncompliance by the Company with
Section 5(c).
(b) The Initial Purchasers agree to indemnify and hold
harmless the Company, the Subsidiaries, their directors, their officers and each
person, if any, who controls the Company or any Subsidiary within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act against any losses,
claims, damages or liabilities to which the Company, any Subsidiary or any such
director, officer or controlling person may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in any Memorandum or any amendment or supplement thereto or any Application, or
(ii) the omission or the alleged omission to state therein a material fact
required to be stated in any Memorandum or any amendment or supplement thereto
or any Application, or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by the
Initial Purchasers specifically for use therein; and subject to the limitation
set forth immediately preceding this clause, will reimburse, as incurred, any
reasonable legal or other expenses incurred by the Company, any Subsidiary, or
any such director, officer or controlling person in connection with
investigating or defending against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action in respect
thereof. This indemnity agreement will be in addition to any liability that the
Initial Purchasers may otherwise have to the indemnified parties. Subject to
Section 9(c), the Initial Purchasers shall not be liable under this Section 9
for any settlement of any claim or action effected without their written
consent, which shall not be unreasonably withheld. The Company and the
Subsidiaries shall not, without the prior written consent of the Initial
Purchasers, effect any settlement or compromise of any pending or threatened
proceeding in respect of which the Initial Purchasers are or could have been a
party, or indemnity could have been sought hereunder by any Initial Purchaser,
unless such settlement (A) includes an unconditional written release of such
Initial Purchaser, in form and substance reasonably satisfactory to such Initial
Purchaser, from all liability on claims that are the subject matter of such
proceeding and (B) does not include any statement as to an admission of fault,
culpability or failure to act by or on behalf of such Initial Purchaser.
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(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 9, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9, notify the indemnifying party of the commencement
thereof in writing; but the omission to so notify the indemnifying party (i)
will not relieve it from any liability under paragraph (a) or (b) above unless
and to the extent such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraphs (a) and (b)
above. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 9 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances designated by the Initial Purchaser in the case of
paragraph (a) of this Section 9 or either the Company or any of the Subsidiaries
in the case of paragraph (b) of this Section 9, representing the indemnified
parties under such paragraph (a) or
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paragraph (b), as the case may be, who are parties to such action or actions) or
(ii) the indemnifying party has authorized in writing the employment of counsel
for the indemnified party at the expense of the indemnifying party. After such
notice from the indemnifying party to such indemnified party, the indemnifying
party will not be liable for the costs and expenses of any settlement of such
action effected by such indemnified party without the prior written consent of
the indemnifying party, unless such indemnified party waived in writing its
rights under this Section 9, in which case the indemnified party may effect such
a settlement without such consent.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 9 is unavailable to an
indemnified party in respect of any losses, claims, damages or liabilities (or
actions in respect thereof), each indemnifying party, in order to provide for
just and equitable contribution, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect (i) the relative benefits received by the indemnifying party or
parties on the one hand and the indemnified party on the other from the offering
of the Notes or (ii) if the allocation provided by the foregoing clause (i) is
not permitted by applicable law, not only such relative benefits but also the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions or
alleged statements or omissions or breaches that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof). The relative
benefits received by the Company and the Subsidiaries on the one hand and the
Initial Purchasers on the other shall be deemed to be in the same proportion as
the total proceeds from the offering of the Notes (net of commissions and before
deducting expenses) received by the Company or any Subsidiary bears to the total
discounts and commissions received by the Initial Purchasers. The relative fault
of the parties shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or any Subsidiary on the one hand, or the Initial Purchasers on the
other, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission or alleged
statement or omission, and any other equitable considerations appropriate in the
circumstances. The Company, the Subsidiaries and the Initial Purchasers agree
that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to in the first sentence of this paragraph (d). Notwithstanding any other
provision of this paragraph (d), neither Initial Purchaser shall be obligated to
make contributions hereunder that in the aggregate exceed the total discounts,
commissions and other compensation received by such Initial Purchaser under this
Agreement, less
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the aggregate amount of any damages that such Initial Purchaser has otherwise
been required to pay by reason of the untrue or alleged untrue statements or the
omissions or alleged omissions to state a material fact, and no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls an Initial Purchaser within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Initial Purchasers, and each director of the Company or any
Subsidiary, each officer of the Company or any Subsidiary and each person, if
any, who controls the Company or any Subsidiary within the meaning of Section 15
of the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Company and such Subsidiary.
10. Survival Clause. The respective representations,
warranties, agreements, covenants, indemnities and other statements of the
Company, the Subsidiaries, their respective officers and the Initial Purchasers
set forth in this Agreement or made by or on behalf of them pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company, the Subsidiaries, any of
their respective officers or directors, the Initial Purchasers or any other
person referred to in Section 9 hereof and (ii) delivery of and payment for the
Notes. The respective agreements, covenants, indemnities and other statements
set forth in Sections 6, 9 and 15 hereof shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement.
11. Termination. (a) This Agreement may be terminated in the
sole discretion of NatWest Capital Markets Limited ("NatWest") by notice to the
Company given on or prior to the Closing Date in the event that the Company
shall have failed, refused or been unable to perform all obligations and satisfy
all conditions on their respective part to be performed or satisfied hereunder
at or prior thereto or, if at or prior to the Closing Date any of the following
shall have occurred:
(i) any of the Company or the Subsidiaries shall have
sustained any loss or interference with respect to its businesses or
properties from fire, flood, earthquakes, hurricane, accident or other
calamity, whether or not covered by insurance, or from any strike,
labor dispute, slow down or work stoppage or any legal or governmental
proceeding, which loss or interference has had or could be reasonably
likely to have a Material Adverse Effect, or there shall have been, in
the sole judgment of NatWest, any other event or development that,
individually or in the aggregate, has or could be reasonably likely to
have a Material Adverse Effect (including without limitation a change
in control of the
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Company or the Subsidiaries), except in each case as described in the
Final Memorandum (exclusive of any amendment or supplement thereto);
(ii) there shall have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company
and the Subsidiaries, taken as a whole, from that set forth in the
Final Memorandum that is material and adverse and that makes it, in
NatWest's sole judgment, impracticable to market the Notes on the terms
and in the manner contemplated in the Final Memorandum;
(iii) trading generally shall have been suspended or
materially limited on or by, as the case may be, either of the New York
Stock Exchange or the National Association of Securities Dealers, Inc.
or the setting of minimum prices for trading on such exchange or market
shall have occurred or trading of any securities of the Company or the
Subsidiaries shall have been suspended on any exchange or in any
over-the-counter market;
(iv) a banking moratorium shall have been declared by New
York, Ohio or United States authorities;
(v) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States, (C) any material change in the financial
markets of the United States or (D) any other national or international
calamity or emergency which, in the case of (A), (B), (C) or (D) above
and in the sole judgment of NatWest, makes it impracticable or
inadvisable to proceed with the offering or the delivery of the Notes
as contemplated by the Final Memorandum;
(vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs that
has a material adverse effect on the financial markets in the United
States, and would, in the sole judgment of NatWest, make it
impracticable or inadvisable to market the Notes;
(vii) the proposal, enactment, publication, decree, or other
promulgation of any federal or state statute, regulation, rule order of
any court or other governmental authority which, in the sole judgment
of NatWest, would have a Material Adverse Effect;
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(viii) any securities of the Company or any Subsidiary shall
have been downgraded or placed on any "watch list" for possible
downgrading by any nationally recognized statistical rating
organization; or
(ix) the failure by the Company to consummate any of the
Acquisitions.
(b) Termination of this Agreement pursuant to this Section 11
shall be without liability of any party to any other party except as provided in
this Section 11 and Sections 6 and 10 hereof.
If this Agreement shall be terminated by the NatWest because
of any failure or refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this Agreement or any
condition of the purchasers, obligations cannot be fulfilled, the Company agrees
to reimburse the Initial Purchasers for all out-of-pocket expenses (including
the reasonable fees and expenses of their counsel) reasonably incurred by such
Initial Purchasers in connection with this Agreement or the offering
contemplated hereunder; provided, however, that the Company shall have no
obligation under this Section if this Agreement is terminated by reason of the
failure of Initial Purchasers' counsel to deliver the opinion referred to in
Section 7(b).
12. Information Supplied by the Initial Purchasers. The
statements set forth in the last paragraph on the cover page of the Final
Memorandum and paragraphs 5, 6 and 7 under the heading "Notes Plan of
Distribution" in the Final Memorandum (to the extent such statements relate to
the Initial Purchasers) constitute the only information furnished by the Initial
Purchasers to the Company for the purposes of Sections 2(a) and 9 hereof.
13. Notices. All communications hereunder shall be in writing
and, if sent to the Initial Purchasers, shall be mailed or delivered to (i)
NatWest Capital Markets Limited, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, with a copy
to White & Case, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.; if sent to the Company, shall be mailed or
delivered to the Company at American Architectural Products Corporation, ▇▇▇
▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, with a copy to, Squire, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ L.L.P., Two Renaissance Square, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq..
All such notices and communications shall be deemed to have
been duly given: upon successful transmission if given via facsimile; when
delivered by hand,
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if personally delivered; five business days after being deposited in the mail,
postage prepaid, if mailed; and one business day after being timely delivered to
a next-day air courier.
14. Successors. This Agreement shall inure to the benefit of
and be binding upon the Initial Purchasers, the Company, the Subsidiaries and
their respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained; this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Company and the Subsidiaries contained in Section 9 of
this Agreement shall also be for the benefit of any person or persons who
control the Initial Purchasers within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act and (ii) the indemnities of the Initial
Purchasers contained in Section 9 of this Agreement shall also be for the
benefit of the directors and officers of the Company and the Subsidiaries and
any person or persons who control the Company or any Subsidiary within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act. No purchaser
of Notes from the Initial Purchasers will be deemed a successor because of such
purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
16. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement among the
Company, the Subsidiaries and the Initial Purchasers.
Very truly yours,
AMERICAN ARCHITECTURAL
PRODUCTS CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
DCI/DCW ACQUISITION CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
BBPI ACQUISITION CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
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AMERICAN GLASSMITH ACQUISITION
CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
MODERN WINDOW ACQUISITION
CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
EAGLE & ▇▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President-Finance
FORTE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
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WESTERN INSULATED GLASS, CO.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
THERMETIC GLASS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
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The foregoing Agreement is hereby
confirmed and accepted as of the
date first above
written.
NATWEST CAPITAL MARKETS LIMITED
By: /s/ N.S. Coulbeck
-----------------------------------
Name: N.S. Coulbeck
Title: Director
▇▇▇▇▇▇▇▇ & COMPANY SECURITIES, INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Sr. Vice President
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SCHEDULE 1
Notes
Initial Purchaser Principal Amount
----------------- ----------------
NatWest Capital Markets Limited $ 62,500,000
▇▇▇▇▇▇▇▇ & Company Securities 62,500,000
-----------------
Incorporated
$125,000,000
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SCHEDULE 2
List of Subsidiaries
Percentage Number and Jurisdiction of
Subsidiary Ownership Type of Shares Organization
---------- --------- -------------- ------------
DCI/DCW Acquisition 100% Common Delaware
Corporation
BBPI Acquisition 100% Common Delaware
Corporation
American Glassmith 100% Common Delaware
Acquisition Corporation
Modern Window 100% Common Delaware
Acquisition Corporation
Eagle & ▇▇▇▇▇▇ Company 100% Common Delaware
Forte, Inc. 100% Common Ohio
Western Insulated Glass, 100% Common Arizona
Co.
Thermetic Glass, Inc. 100% Common Delaware
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