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Exhibit 1.1
SPINCYCLE, INC.
144,990 UNITS CONSISTING OF
$144,990,000 AGGREGATE PRINCIPAL AMOUNT AT MATURITY
12 3/4% SENIOR DISCOUNT NOTES DUE 2005
AND
144,990 WARRANTS TO PURCHASE 26,661 SHARES OF COMMON STOCK
PURCHASE AGREEMENT
April 24, 1998
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue
New York, N.Y. 10010-3629
Ladies and Gentlemen:
1. Introductory. SpinCycle, Inc., a Delaware corporation (the
"Company") proposes, subject to the terms and conditions stated herein, to issue
and sell to you (the "Initial Purchaser") 144,990 Units (the "Units") each
consisting of $1000 principal amount at maturity 12 3/4% Senior Discount Notes
due 2005 (the "Notes") and one Warrant (the "Warrants") to purchase .1839 shares
of common stock, par value $.01 per share (the "Warrant Shares" and, together
with the Warrants, the Notes and the Units, the "Offered Securities"). The Notes
are to be issued under an indenture, dated as of April 29, 1998 (the
"Indenture"), between the Company and Norwest Bank Minnesota, N.A., as Trustee.
The Warrants are to be issued under a warrant agreement to be dated as of April
29, 1998 (the "Warrant Agreement") between the Company and Norwest Bank
Minnesota, N.A., as Warrant Agent (the "Warrant Agent"). The holders of Notes,
including the Initial Purchaser, will be entitled to the benefits of a
Registration Rights Agreement (the "Registration Rights Agreement") dated as of
April 29, 1998 between the Company and the Initial Purchaser. The holders of
Warrants and Warrant Shares, including the Initial Purchaser, will be entitled
to the benefits of the registration rights with respect thereto under the
Warrant Agreement. This agreement (the "Agreement" or the "Purchase Agreement"),
the Indenture, the Warrant Agreement and the Registration Rights Agreement are
referred to collectively as the " Operative Documents."
The Company hereby agrees with the Initial Purchaser as
follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Initial Purchaser that as of
the date hereof:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities have been prepared by the Company.
Such preliminary offering circular and offering circular, as
supplemented as of the date of this Agreement, are hereinafter
collectively referred to as the "Offering Document". On the date of
this Agreement, the Offering Document does not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
information required to be delivered to holders and prospective
purchasers of the Offered Securities pursuant to Section 10.09 of the
Indenture in accordance with Rule 144A(d)(4) under the Securities Act
(the "Additional Issuer Information") will not include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circum-
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stances under which they were made, not misleading. The preceding two
sentences do not apply to statements in or omissions from the Offering
Document based upon written information furnished to the Company by the
Initial Purchaser specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 7(b) hereof.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Offering Document; the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified could not be
expected, singly or in the aggregate, to have a material adverse effect
on the Company; and the Company has no subsidiaries.
(c) 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 Trust Indenture Act of 1939, as amended (the "TIA"). The Indenture
and the Notes to be issued thereunder have been duly authorized by the
Company; when the Notes are issued and authenticated in accordance with
the terms of the Indenture and delivered and paid for pursuant to this
Agreement on the Closing Date, the Indenture will have been duly
executed and delivered and such Notes will have been duly executed,
authenticated, issued and delivered and the Indenture and such Notes
will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(d) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Warrant Agreement; the Warrant Agreement, the Warrants and the Warrant
Shares have been duly authorized by the Company; when the Warrants are
issued and countersigned in accordance with the terms of the Warrant
Agreement and delivered and paid for pursuant to this Agreement on the
Closing Date, the Warrant Agreement will have been duly executed and
delivered and such Warrants will have been duly executed,
authenticated, issued and delivered and the Warrant Agreement and the
Warrants will constitute the valid and legally binding obligations of
the Company enforceable in accordance with their terms.
(e) When issued in accordance with the terms and conditions
contained in the Warrant Agreement upon exercise of the Warrants, the
Warrant Shares will be duly authorized, validly issued, fully paid and
nonassessable and will not be subject to any preemptive or similar
rights. The Warrant Shares have been duly reserved for issuance in
accordance with the terms of the Warrants and the Warrant Agreement and
conform in all material respects to the description thereof in the
Offering Document.
(f) 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 authorized by the Company, and when executed and delivered by
the Company on the Closing Date (as defined below), will have been duly
executed and delivered and will constitute a valid and legally binding
obligation of the Company, enforceable in accordance with its terms,
except as rights of indemnity or contribution, or both, may be limited
by state and federal securities laws or
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public policy underlying such laws, and subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(g) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or the
Initial Purchaser for a brokerage commission, finder's fee or other
like payment in connection with the issuance, purchase and sale of the
Offered Securities.
(h) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court or any third
party is required for the consummation of the transactions contemplated
by this Agreement in connection with the issuance and sale of the
Offered Securities by the Company, except (i) such as may be required
under state securities and Blue Sky laws and regulations or (ii) where
the failure to obtain such consents could not, individually or in the
aggregate, have a material adverse effect on the Company.
(i) The execution, delivery and performance of the Operative
Documents and the issuance and sale of the Offered Securities and
compliance with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, rule, regulation or order of
any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any of its properties, or any
agreement or instrument to which the Company is a party or by which the
Company is bound or to which any of the properties of the Company is
subject, or the charter or bylaws of the Company, and the Company has
full power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement, except for such
violations, breaches and defaults as could not, individually or in the
aggregate, have a material adverse effect on the Company.
(j) 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 authorized, executed and delivered by the
Company and constitutes a valid and legally binding obligation of the
Company enforceable in accordance with its terms, except as rights of
indemnity or contribution or both may be limited by state and federal
securities laws or public policy underlying such laws and subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(k) Except as disclosed in the Offering Document, the Company
has good and marketable title to all real properties and all other
properties and assets owned by it and necessary to the operation of its
business, in each case free from liens, encumbrances and defects that
would materially affect the value thereof or materially interfere with
the use made or to be made thereof by it; and except as disclosed in
the Offering Document, the Company holds any leased real or personal
property under valid and enforceable leases with no exceptions that
would materially interfere with the use made or to be made thereof by
it.
(l) Except as disclosed in the Offering Document, the Company
possesses adequate certificates, licenses, authorities, permits, or
other rights issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by it except where the
failure to have such
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certificates, licenses, authorities, permits or other rights could not
be expected, singly or in the aggregate, to have a material adverse
effect on the Company. The Company has not received any notice of
proceedings relating to the revocation or modification of any such
certificate, license, authority, permit or right that, if determined
adversely to the Company, could be expected, individually or in the
aggregate, to have a material adverse effect on the Company.
(m) Except as described in the Offering Document, no labor
dispute with the employees of the Company exists or is imminent that
could be expected, individually or in the aggregate, to have a material
adverse effect on the Company.
(n) The Company owns, possesses or can acquire on reasonable
terms adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by it, or presently
employed by it with such exceptions as do not individually or in the
aggregate have a material adverse effect on the Company, and (except as
disclosed in the Offering Document) the Company has not received any
notice of infringement of or conflict with asserted rights of others
with respect to any intellectual property rights that is reasonably
likely individually or in the aggregate to have a material adverse
effect on the Company.
(o) Except as disclosed in the Offering Document, the Company
is not in violation of any statute, rule, regulation, decision or order
of any governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"); the Company does not own or
operate any real property that, is contaminated with any substance that
is subject to any environmental laws, and is not liable for any
off-site disposal or contamination pursuant to any environmental laws,
or subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in
the aggregate could reasonably be expected to have a material adverse
effect on the Company; and the Company is not aware of any pending
investigation which might lead to such a claim.
(p) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Company
or any of its properties that, if determined adversely to the Company,
would individually or in the aggregate, have a material adverse effect
on the condition (financial or other), business, properties or results
of operations of the Company, or would materially and adversely affect
the ability of the Company to perform its obligations under the
Indenture, the Warrant Agreement or this Agreement, or which are
otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are threatened
or, to the Company's knowledge, contemplated.
(q) The financial statements of the Company and the related
notes thereto included in the Offering Document present fairly the
financial position of the Company as of the dates shown and the results
of operations and cash flows for the periods shown, and, except as
otherwise disclosed in the Offering Document, such financial statements
have been prepared in conformity with the generally accepted accounting
principles in the United States. The summary and selected financial and
statistical data included in the Offering Document present fairly in
all material respects the information shown therein and have been
prepared and applied on a basis consistent with the audited financial
statements included therein, except as otherwise stated therein, and
comply as to form in all material
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respects with the applicable accounting requirements of the Securities
Act of 1933 (the "Securities Act") and the rules and regulations
thereunder.
(r) Except as disclosed in the Offering Document, since the
date of the latest audited financial statements included in the
Offering Document there has been no material adverse change, nor any
development or event involving a prospective material adverse change,
in the condition (financial or other), business, properties or results
of operations of the Company, and, except as disclosed in or
contemplated by the Offering Document, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(s) Price Waterhouse LLP is an independent public accounting
firm as would be required by the Securities Act and the rules and
regulations thereunder with respect to a registration statement
covering the Offered Securities.
(t) Each of the Indenture, the Notes, the Registration Rights
Agreement, the Warrant Agreement and the Warrants conforms in all
material respects to the description thereof in the Offering Document.
(u) The Company is not an open-end investment company, unit
investment trust or face amount certificate company that is or is
required to be registered under Section 8 of the United States
Investment Company Act of 1940 (the "Investment Company Act"); and the
Company is not and, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as
described in the Offering Document, will not be an "investment company"
as defined in the Investment Company Act.
(v) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Offered Securities are
listed on any national securities exchange registered under Section 6
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
or quoted in a U.S. automated inter-dealer quotation system. No holder
of securities of the Company (except as set forth in the Registration
Rights Agreement or the Warrant Agreement) 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 or the Warrant Agreement other than as expressly permitted
thereby.
(w) The offer and sale of the Offered Securities in the manner
contemplated by this Agreement will be exempt from the registration
requirements of the Securities Act by reason of Section 4(2) thereof
and Regulation S thereunder; and it is not necessary to qualify an
indenture in respect of the Offered Securities under the TIA.
(x) Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf (i) has, within the six-month
period prior to the date hereof, offered or sold in the United States
or to any U.S. person (as such terms are defined in Regulation S
("Regulation S") under the Securities Act) the Offered Securities or
any security of the same class or series as the Offered Securities or
(ii) has offered or will offer or sell the Offered Securities (A) in
the United States by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the
Securities Act or (B) with respect to any such securities sold in
reliance on Rule 903 of Regulation S by means of any directed selling
efforts within the meaning of Rule 902(b) of Regulation S. The
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Company, its affiliates and any person acting on its or their behalf
have complied and will comply with the offering restrictions
requirement of Regulation S. The Company has not entered and will not
enter into any contractual arrangement with respect to the distribution
of the Offered Securities except for this Agreement.
(y) The Company has 303,165 total shares of capital stock
outstanding, consisting of 275,402 shares of preferred stock and 27,763
shares of common stock. The Company has granted 25,653 options
outstanding exercisable for 25,653 shares of common stock.
3. Purchase, Sale and Delivery of Offered Securities. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to sell
to the Initial Purchaser, and the Initial Purchaser agrees to purchase from the
Company all of the Offered Securities, at a purchase price of $667.64 per Unit
plus the increase in accreted value, if any, on the Notes from April 29, 1998 to
the Closing Date (as hereinafter defined).
The Company will deliver against payment of the purchase price
the Offered Securities to be offered and sold by the Initial Purchaser in
reliance on Rule 144A under the Securities Act (the "Rule 144A Securities") in
the form of one or more permanent global securities in definitive form without
interest coupons (the "Restricted Global Securities") deposited with the Trustee
as custodian for DTC and registered in the name of Cede & Co., as nominee for
DTC. The Firm Restricted Global Securities shall include the legend regarding
restrictions on transfer set forth under "Transfer Restrictions" in the Offering
Document. Offered Securities sold in reliance on Regulation S (the "Regulation S
Securities") shall be issued in definitive, fully registered from, in such
denominations and registered in such names as the Initial Purchaser requests and
shall bear the legend relating thereto set forth under "Transfer Restrictions"
in the Offering Document.
Payment for the Offered Securities shall be made by the
Initial Purchaser in Federal (same day) funds by official check or checks or
wire transfer to an account at a bank acceptable to the Initial Purchaser drawn
to the order of the Company at the office of Cahill Gordon & Reindel, 80 Pine
Street, New York, NY at 9:00 A.M., (New York time), on April 29, 1998 or at such
other place or time not later than seven full business days thereafter as the
Initial Purchaser and the Company determine, such time being herein referred to
as the "Closing Date", against (i) delivery to the Trustee as custodian for DTC
of the Restricted Global Securities representing all the Rule 144A Securities
and (ii) delivery to the Initial Purchaser of definitive fully registered
certificates representing all of the Regulation S Securities. The Restricted
Global Securities and the Regulation S Securities will be made available for
checking at the above office of Cahill Gordon & Reindel at least 24 hours prior
to the Closing Date.
4. Representations by Initial Purchaser; Resale by Initial
Purchaser.
(a) The Initial Purchaser represents and warrants to the
Company that it is an "accredited investor" within the meaning of Regulation D
under the Securities Act.
(b) The Initial Purchaser acknowledges that the Offered
Securities have not been registered under the Securities Act and may not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except in accordance with Regulation S or pursuant to an
exemption from the registration requirements of the Securities Act. The Initial
Purchaser represents and agrees that it has offered and sold the Offered
Securities, and will offer and sell the Offered Securities (i) as part of its
distribution at any time and (ii) otherwise until after the applicable
distribution compliance period only in accordance with Rule
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903 or Rule 144A under the Securities Act ("Rule 144A"). Accordingly, neither
the Initial Purchaser nor its affiliates, nor any persons acting on its or their
behalf, have engaged or will engage in any directed selling efforts with respect
to the Offered Securities, and the Initial Purchaser, its affiliates and all
persons acting on its or their behalf have complied and will comply with the
offering restrictions requirement of Regulation S. The Initial Purchaser agrees
that, at or prior to confirmation of sale of the Offered Securities, other than
a sale pursuant to Rule 144A, the Initial Purchaser will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
renumeration that purchases the Offered Securities from it during the restricted
period a confirmation or notice to substantially the following effect;
"The Securities covered hereby have not been
registered under the U.S. Securities Act of 1933 (the
"Securities Act") and may not be offered or sold within the
United States or to, or for the account or benefit of U.S.
persons (i) as part of their distribution at any time or (ii)
otherwise until after the applicable distribution compliance
period except in either case in accordance with Regulation S
(or Rule 144A if available) under the Securities Act. Terms
used above have the meanings given to them by Regulation S."
Terms used in this subsection (b) have the meanings given to them by Regulation
S.
(c) The Initial Purchaser agrees that it and each of its
affiliates has not entered and will not enter into any contractual arrangement
with respect to the distribution of the Offered Securities except with the prior
written consent of the Company.
(d) The Initial Purchaser agrees that it and each of its
affiliates has not and will not offer or sell the Offered Securities by means of
any form of general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act, including, but not limited to (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio, or
(ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. The Initial Purchaser agrees, with respect
to resales made in reliance on Rule 144A of any of the Offered Securities, to
deliver either with the confirmation of such resale or otherwise prior to
settlement of such resale a notice to the effect that the resale of such Offered
Securities has been made in reliance upon the exemption from the registration
requirements of the Securities Act provided by Rule 144A.
(e) The Initial Purchaser represents and agrees that (i) it
has not offered or sold and prior to the date six months after the date of issue
of the Offered Securities will not offer or sell any Offered Securities to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services Act 1986 with respect to
anything done by it in relation to the Offered Securities in, from or otherwise
involving the United Kingdom; and (iii) it has only issued or passed on and will
only issue or pass on in the United Kingdom any document received by it in
connection with the issue of the Offered Securities to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisement) (Exemptions) Order 1996 or is a person to whom such document may
otherwise lawfully be issued or passed on.
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5. Certain Agreements of the Company. The Company agrees with
the Initial Purchaser that:
(a) The Company will advise the Initial Purchaser promptly of
any proposal to amend or supplement the Offering Document and will not
effect such amendment or supplementation without the Initial
Purchaser's consent, which shall not be unreasonably withheld or
delayed. If, at any time prior to the completion of the resale of the
Offered Securities by the Initial Purchaser, any event occurs as a
result of which the Offering Document as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, the Company promptly will notify the Initial Purchaser of
such event and promptly will prepare, at its own expense, an amendment
or supplement which will correct such statement or omission. Neither
the Initial Purchaser's consent to, nor the Initial Purchaser's
delivery to offerees or investors of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6.
(b) The Company has furnished to the Initial Purchaser copies
of the preliminary offering circular, and will furnish to the Initial
Purchaser copies of the Offering Document and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as the Initial Purchaser reasonably requests, and the
Company will furnish to the Initial Purchaser on the date hereof two
copies of the Offering Document signed by a duly authorized officer of
the Company, one of which will include the independent accountants'
reports therein manually signed by such independent accountants. At any
time when the Company is not subject to Section 13 or 15(d) of the
Exchange Act, the Company will promptly furnish or cause to be
furnished to the Initial Purchaser and, upon request of holders and
prospective purchasers of the Offered Securities, to such holders and
purchasers, copies of the information required to be delivered to
holders and prospective purchasers of the Offered Securities pursuant
to Rule 144A(d)(4) under the Securities Act (or any successor provision
thereto) in order to permit compliance with Rule 144A in connection
with resales by such holders of the Offered Securities. The Company
will pay the expenses of printing and distributing to the Initial
Purchaser all such documents.
(c) The Company will arrange for the qualification of the
Offered Securities for sale and the determination of their eligibility
for investment under the laws of such jurisdictions in the United
States and Canada as the Initial Purchaser reasonably designates and
will continue such qualifications in effect so long as required for the
resale of the Offered Securities by the Initial Purchaser, provided
that the Company will not be required to qualify as a foreign
corporation or to take any action that would subject it to service of
process or taxation in any such jurisdiction.
(d) For so long as the Offered Securities remain outstanding
the Company will furnish to the Initial Purchaser, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to stockholders for such year; and the Company will furnish to
the Initial Purchaser (i) as soon as available, a copy of each report
and any definitive proxy statement of the Company filed with the
Securities and Exchange Commission (the "Commission") under the
Exchange Act or mailed to stockholders, and (ii) from time to time,
such other publicly available information concerning the Company as the
Initial Purchaser may reasonably request.
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(e) During the period of two years after the Closing Date, the
Company will, upon request, furnish to the Initial Purchaser and any
holder of Offered Securities information regarding the restrictions on
transfer applicable to the Offered Securities.
(f) During the period of two years after the Closing Date, the
Company will not, and will not permit any of its affiliates (as defined
in Rule 144 under the Securities Act) to, resell any of the Offered
Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing Date, the
Company will not be or become, an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company
Act.
(h) The Company will pay all expenses incidental to the
performance of its obligations under this Agreement, the Indenture and
the Warrant Agreement, including (i) the fees and expenses of the
Trustee and the Warrant Agent and their respective professional
advisers; (ii) all expenses in connection with the execution, issue,
authentication, packaging and initial delivery of the Offered
Securities, the preparation and printing of this Agreement, the Offered
Securities, the Indenture, the Warrant Agreement, the Offering Document
and all amendments and supplements thereto, and any other document
relating to the issuance, offer, sale and delivery of the Offered
Securities; (iii) the cost of listing the Offered Securities and
qualifying the Offered Securities for trading in The Portal(SM) Market
("PORTAL") of The Nasdaq Stock Market, Inc. and any expenses incidental
thereto; (iv) the cost of any advertising approved by the Company in
connection with the issue of the Offered Securities; (v) for any
expenses (including reasonable fees and disbursements of counsel)
incurred in connection with qualification of the Offered Securities for
sale under the laws of such jurisdictions in the United States and
Canada as the Initial Purchaser reasonably designates and the printing
of memoranda relating thereto; (vi) for any fees charged by investment
rating agencies for the rating of the Offered Securities; and (vii) for
expenses incurred in distributing the Offering Document (including any
amendments and supplements thereto) to the Initial Purchaser. The
Company will also pay, or reimburse the Initial Purchaser, for one-half
of the cost of private, chartered air transportation for the Initial
Purchaser and the Company's officers and employees in connection with
attending meetings with prospective purchasers of the Offered
Securities.
(i) In connection with the offering, until the Initial
Purchaser shall have notified the Company of the completion of the
resale of the Offered Securities, neither the Company nor any of its
affiliates will, either alone or with one or more other persons, bid
for or purchase for any account in which it or any of its affiliates
has a beneficial interest any Offered Securities or attempt to induce
any person to purchase any Offered Securities; and neither it nor any
of its affiliates will make bids or purchases for the purpose of
creating actual, or apparent, active trading in, or of raising the
price of, the Offered Securities.
(j) For a period of 180 days after the date of the initial
offering of the Offered Securities by the Initial Purchaser, the
Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any United States
dollar-denominated debt securities issued or guaranteed by the Company
and having a maturity of more than one year from the date of issue, or
any shares of common stock of the Company or securities convertible
into or exchangeable or exercisable for shares of common stock of the
Company or warrants or other rights to purchase shares of common stock
of the Company, or publicly disclose the intention to make any such
offer, sale, pledge or
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disposition, without the prior written consent of the Initial
Purchaser. The Company will not at any time offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, any
securities under circumstances where such offer, sale, pledge, contract
or disposition would cause the exemption afforded by Section 4(2) of
the Securities Act to cease to be applicable to the offer and sale of
the Offered Securities.
(k) The Company will apply the net proceeds from the sale of
the Offered Securities substantially as set forth under "Use of
Proceeds" in the Offering Document.
(l) The Company will cooperate with the Initial Purchaser to
effect the inclusion of the Offered Securities in PORTAL.
6. Conditions of the Obligations of the Initial Purchaser. The
obligations of the Initial Purchaser to purchase and pay for the Offered
Securities will be subject to the accuracy of the representations and warranties
on the part of the Company herein, to the accuracy of the statements of officers
of the Company made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) The Initial Purchaser shall have received a letter, dated
the date of this Agreement, of Price Waterhouse LLP, confirming that
they are independent public accountants within the meaning of the
Securities Act and the applicable published rules and regulations
thereunder ("Rules and Regulations") and to the effect that:
(i) in their opinion the financial statements
examined by them and included in the Offering Document comply
as to form in all material respects with the applicable
accounting requirements of the Securities Act and the related
published Rules and Regulations.
(ii) on the basis of a reading of the latest
available interim financial statements of the Company,
inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them
to believe that:
(A) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net assets, as compared with amounts
shown on the latest balance sheet included in the
Offering Document; or
(B) for the period from the closing date of
the latest income statement included in the Offering
Document to the closing date of the latest available
income statement read by such accountants there were
any decreases, as compared with the corresponding
period of the previous year, in consolidated
revenues, net operating income, consolidated net
income or in the ratio of deficiency of earnings to
fixed charges;
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except in all cases set forth in clauses (A) and (B) above for
changes, increases or decreases which the Offering Document
discloses have occurred or may occur or which are described in
such letter; and
(iii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Offering Document (in
each case to the extent that such dollar amounts, percentages
and other financial information are derived from the general
accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in
such letter.
(b) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) a change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the reasonable
judgment of the Initial Purchaser, be likely to prejudice materially
the success of the proposed issue, sale or distribution of the Offered
Securities, whether in the primary market or in respect of dealings in
the secondary market, or (ii) (A) any change, or any development or
event involving a prospective change, in the condition (financial or
other), business, properties or results of operations of the Company
which, in the judgment of the Initial Purchaser, is material and
adverse and makes it impractical or inadvisable to proceed with
completion of the offering or the sale of and payment for the Offered
Securities; (B) any downgrading in the rating of any debt securities of
the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the
Securities Act), or any public announcement that any such organization
has under surveillance or review its rating of any debt securities of
the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of
such rating); (C) any suspension or limitation of trading in securities
generally on the New York Stock Exchange or any setting of minimum
prices for trading on such exchange, or any suspension of trading of
any securities of the Company on any exchange or in the
over-the-counter market; (D) any banking moratorium declared by U.S.
Federal or New York authorities; or (E) any outbreak or escalation of
major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of the Initial
Purchaser, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed
with completion of the offering or sale of and payment for the Offered
Securities.
(c) The Initial Purchaser shall have received an opinion dated
the Closing Date, of Pedersen & Houpt, counsel for the Company, that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of its
jurisdiction of incorporation, and has the corporate power and
authority to own its properties and conduct its business as
described in the Offering Document; the Company is duly
qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified
could not be
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expected, singly or in the aggregate, to have a material
adverse effect on the Company, and the Company has no
subsidiaries;
(ii) 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 and the Notes to be
issued thereunder have been duly authorized by the Company;
when the Notes are issued and authenticated in accordance with
the terms of the Indenture and delivered and paid for pursuant
to this Agreement on the Closing Date, the Indenture will have
been duly executed and delivered and such Notes will have been
duly executed, authenticated, issued and delivered and the
Indenture and such Notes will constitute valid and legally
binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(iii) the Company has all requisite corporate power and
authority to execute, deliver and perform its obligations
under the Warrant Agreement; the Warrant Agreement, the
Warrants and the Warrant Shares have been duly authorized by
the Company; when the Warrants are issued and countersigned in
accordance with the terms of the Warrant Agreement and
delivered and paid for pursuant to this Agreement on the
Closing Date, the Warrant Agreement will have been duly
executed and delivered and such Warrants will have been duly
executed, authenticated, issued and delivered and the Warrant
Agreement and the Warrants will constitute the valid and
legally binding obligations of the Company enforceable in
accordance with their terms;
(iv) when issued in accordance with the terms and
conditions contained in the Warrant Agreement upon exercise of
the Warrants, the Warrant Shares will be duly authorized,
validly issued, fully paid and nonassessable and will not be
subject to any preemptive or similar rights. The Warrant
Shares have been duly reserved for issuance in accordance with
the terms of the Warrants and the Warrant Agreement and
conform in all material respects to the description thereof in
the Offering Document;
(v) the Company has the corporate power and authority
to execute and deliver and perform its obligations under the
Registration Rights Agreement. The Registration Rights
Agreement has been duly authorized by all necessary action on
the part of the Company, has been duly executed and delivered
by the Company and constitutes the valid and legally binding
obligation of the Company, enforceable in accordance with its
terms, except (a) as may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent or transfer conveyance
or other similar laws relating to or affecting the enforcement
of creditors' rights generally and (b) as the enforceability
thereof is subject to the application of general principles of
equity (whether considered in a proceeding at law or in
equity), including without limitation (1) the possible
unavailability of specific performance, injunctive relief or
any other equitable remedy and (2) concepts of materiality,
reasonableness, good faith and fair dealing;
(vi) the Company is not an open-end investment
company, unit investment trust or face amount certificate
company that is or is required to be registered under Section
8 of the
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Investment Company Act, and the Company is not and will not,
after giving effect to the offering and sale of the Offered
Securities and the application of the proceeds thereof as
described in the Offering Document, be an "investment company"
as defined in the Investment Company Act;
(vii) no consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required on the part of the Company for the issuance or
sale of the Offered Securities by the Company, except such as
may be required under state securities laws;
(viii) the issue and sale of the Offered Securities
pursuant to this Agreement will not violate the provisions of
the certificate of incorporation or bylaws of the Company;
(ix) the Company has the corporate power and authority
to execute and deliver and perform its obligations under this
Agreement. This Agreement has been duly authorized, executed
and delivered by the Company;
(x) each of the Indenture, the Notes, the Registration
Rights Agreement, the Warrant Agreement and the Warrants
conforms in all material respects to the description thereof
in the Offering Document; and
(xi) to such counsel's knowledge, the execution,
delivery and performance by the Company of the Operative
Documents, and the consummation by the Company of the
transactions contemplated thereby, will not result in a breach
or violation of any of the terms and provisions of, or
constitute a default under, any statute, rule, regulation or
order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Company or
any of their properties, or any agreement or instrument to
which the Company is a party or by which the Company is bound
or to which any of the properties of the Company is subject
except for such breaches, violations or defaults that would
not individually or in the aggregate result in a material
adverse effect on the Company, or the charter or by-laws of
the Company and the Company has full power and authority to
authorize, issue and sell the Offered Securities as
contemplated by this Agreement; and
(xii) it is not necessary in connection with (i) the
offer, sale and delivery of the Offered Securities by the
Company to the Initial Purchaser pursuant to this Agreement or
(ii) the resales of the Offered Securities by the Initial
Purchaser in the manner contemplated by this Agreement, to
register the Offered Securities under the Securities Act or to
qualify the Indenture under the TIA.
Such counsel shall further state as part of the same
letter in which the foregoing opinions are expressed or by separate
letter addressed to the Initial Purchaser that in the course of the
Company's preparation of the Offering Document, such counsel has
participated in conferences with certain officers or employees of the
Company and with counsel and independent auditors for the Company and
with the Initial Purchaser and counsel for the Initial Purchaser and
reviewed certain corporate records, documents and proceedings of the
Company. Such counsel has not independently verified the accuracy,
completeness or fairness of the statements contained in the Offering
Document, and the limitations inherent in the examination made by such
counsel and the knowledge available to
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such counsel are such that such counsel is unable to assume, and such
counsel does not assume, any responsibility for the accuracy,
completeness or fairness of the statements contained in the Offering
Document. On the basis of the above-described procedures, however, such
counsel does not believe that the Offering Document, on the date
thereof or on the date of such letter, contains any untrue statement of
a material fact 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. Such counsel
does not express any opinion or belief as to the financial statements
and other financial or statistical information included in the Offering
Document.
(d) The Initial Purchaser shall have received from Cahill
Gordon & Reindel, counsel for the Initial Purchaser, such opinion or
opinions, dated the Closing Date, with respect to the incorporation of
the Company, the validity of the Offered Securities, the Offering
Document, the exemption from registration for the offer and sale of the
Offered Securities by the Company to the Initial Purchaser and the
resales by the Initial Purchaser as contemplated hereby and other
related matters as the Initial Purchaser may require, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(e) The Offered Securities shall have been made eligible for
trading in PORTAL.
(f) The Initial Purchaser shall have received a certificate,
dated the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that
(i) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date; and
(ii) subsequent to the respective dates of the most
recent financial statements in the Offering Document there has
been no material adverse change, nor any development or event
involving a prospective material adverse change, in the
condition (financial or other), business, properties or
results of operations of the Company except as set forth in or
contemplated by the Offering Document.
(g) The Initial Purchaser shall have received a letter, dated
the Closing Date, of Price Waterhouse LLP which meets the requirements
of subsection (a) of this Section, except that the specified date
referred to in such subsection will be a date not more than three
business days prior to the Closing Date for the purposes of this
subsection.
(h) On the Closing Date, the Initial Purchaser shall have
received the Warrant Agreement and the Registration Rights Agreement
executed by the Company and the Warrants shall have been duly executed
by the Company and countersigned by the Warrant Agent and such
agreements shall be in full force and effect at all times from and
after the Closing Date.
(i) The Indenture shall have been duly executed and delivered
by the Company and the Trustee, the Notes shall have been duly executed
by the Company and the Notes shall have been duly authenticated by the
Trustee.
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(j) On or before the Closing Date, (i) the New Credit Facility
shall have been consummated, (ii) the Initial Purchaser and counsel for
the Initial Purchaser shall have received copies of the executed New
Credit Facility and such other documents, opinions and reliance letters
as they shall have reasonably requested and (iii) after giving effect
to the transactions contemplated by this Agreement) and the application
of the proceeds received by the Company from the sale of the Notes, no
condition that would constitute a default or event of default under the
New Credit Facility shall exist.
(k) On or before the Closing Date, the Initial Purchaser and
counsel for the Initial Purchaser shall have received such further
documents, certificates and schedules or instruments as they shall have
heretofore reasonably requested from the Company.
The Company will furnish the Initial Purchaser with such
conformed copies of such opinions, certificates, letters and documents as the
Initial Purchaser may reasonably request.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless the Initial
Purchaser against any losses, claims, damages or liabilities to which the
Initial Purchaser may become subject, under the Securities Act or the Exchange
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any breach of any of
the representations and warranties of the Company contained herein or any untrue
statement or alleged untrue statement of any material fact contained in the
Offering Document, or any amendment or supplement thereto, or any related
preliminary offering circular, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and will reimburse the Initial Purchaser for any legal or
other expenses reasonably incurred by the Initial Purchaser in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by the Initial Purchaser specifically for use therein, it being
understood and agreed that the only such information consists of the information
described as such in subsection (b) below; and provided, further, that with
respect to any untrue statement or alleged untrue statement in or omission or
alleged omission from the preliminary offering circular the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of the Initial
Purchaser if the Initial Purchaser sold the Offered Securities concerned to the
person asserting any such losses, claims, damages or liabilities, to the extent
that such sale was an initial resale by the Initial Purchaser and any such loss,
claim, damage or liability of the Initial Purchaser results from the fact that
there was not sent or given to such person a copy of the Offering Document
(exclusive of any material included therein but not attached thereto) if the
Company had previously furnished copies thereof to the Initial Purchaser.
(b) The Initial Purchaser will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related preliminary offering circular,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they
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were made, not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by the Initial Purchaser specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by the Initial Purchaser
consists of the following information in the Offering Document: the last
paragraph at the bottom of the cover page concerning the terms of the offering
by the Initial Purchaser, the legend concerning overallotments and stabilizing
on page (i) of the Offering Document and the third paragraph, the fourth
sentence of the seventh paragraph and the eighth paragraph under the caption
"Plan of Distribution."
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above, except to the extent that it
has been prejudiced in any material respect by such omission. In case any such
action is brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above: (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Initial Purchaser on the other from the
offering of the Offered Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the Initial
Purchaser on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Initial Purchaser on the other shall be deemed to be in
the same proportion as the total net proceeds from the Offered Securities
(before deducting expenses) received by the Company bear to the total discounts
and commissions received by the Initial Purchaser from the Company under this
Agreement. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Initial Purchaser and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party
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as a result of the losses, claims, damages or liabilities referred to in the
first sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), the
Initial Purchaser shall not be required to contribute any amount in excess of
the amount by which the total price at which the Offered Securities purchased by
it were resold exceeds the amount of any damages which the Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
(e) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
the Initial Purchaser within the meaning of the Securities Act or the Exchange
Act; and the obligations of the Initial Purchaser under this Section shall be in
addition to any liability which the Initial Purchaser may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the Initial Purchaser set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made by
the Initial Purchaser, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If for any reason the purchase of the
Offered Securities by the Initial Purchaser is not consummated, the Company
shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Company and the
Initial Purchaser pursuant to Section 7 shall remain in effect. If the purchase
of the Offered Securities by the Initial Purchaser is not consummated for any
reason other than solely because of the occurrence of any event specified in
clause (C), (D) or (E) of Section 6(b)(ii), the Company will reimburse the
Initial Purchaser for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by it in connection with the
offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing
and, if sent to the Initial Purchaser will be mailed, delivered or telegraphed
and confirmed to the Initial Purchaser at Eleven Madison Avenue, New York, N.Y.
10010-3629, Attention: Investment Banking Department -- Transactions Advisory
Group, or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 15990 North Greenway/Hayden Loop, Suite 400, Scottsdale,
Arizona 85260 Attention: Chief Executive Officer.
10. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Company as if such
holders were parties thereto.
11. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
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12. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction
of the Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby.
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If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement among the Company and the Initial
Purchaser in accordance with its terms.
Very truly yours,
SPINCYCLE, INC.
By /s/ Patrick Boyer
---------------------------------
Name: Patrick Boyer
Title: Chief Financial Officer
The foregoing Purchase Agreement is hereby confirmed and accepted as of the date
first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ Jeffrey C. Howe
--------------------------------
Name: Jeffrey C. Howe
Title: Director