$132,000,000
▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇'▇ INC.
14% SENIOR SECURED NOTES DUE 2013
PURCHASE AGREEMENT
September 24, 2008
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇'▇ Inc., a Delaware corporation (the "COMPANY"),
and each of the Guarantors (as hereinafter defined) hereby agree with you as
follows:
1. ISSUANCE OF NOTES. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to ▇▇▇▇▇▇▇▇▇ & Company, Inc.
(the "INITIAL PURCHASER") $132,000,000 aggregate principal amount at maturity of
14% Senior Secured Notes due 2013 (the "NOTES"). The Notes will be issued
pursuant to an indenture (the "INDENTURE"), to be dated as of September 24,
2008, by and among the Company, the Guarantors (as hereinafter defined) and The
Bank of New York Mellon, as trustee (the "TRUSTEE"). Capitalized terms used, but
not defined herein, shall have the meanings set forth in the "DESCRIPTION OF THE
NOTES" section of the Offering Circular (as hereinafter defined).
The Notes will be offered and sold to the Initial Purchaser pursuant to
an exemption from the registration requirements under the Securities Act of
1933, as amended (the "ACT"). Upon original issuance thereof, and until such
time as the same is no longer required under the applicable requirements of the
Act, the Notes shall bear the legends set forth under the "NOTICE TO INVESTORS"
section of the Offering Circular, dated the date hereof (the "OFFERING
CIRCULAR"), which the Company has prepared relating to the offer and sale of the
Notes (the "OFFERING"). "Offering Circular" means, as of any date or time
referred to in this Agreement, the Offering Circular at 9:00 a.m. New York City
time on the date hereof (the "APPLICABLE TIME"), and any amendment or supplement
thereto, including exhibits and schedules thereto.
In connection with the sale of the Notes, the Company will, on the
Closing Date, enter into a new senior revolving credit facility among the
Company, the guarantors named therein and ▇▇▇▇▇ Fargo Foothill, LLC, which
provides for a revolving loan facility in an amount of up to $26.0 million (as
amended, supplemented, modified, extended or restated from time to time, the
"CREDIT AGREEMENT").
2. TERMS OF OFFERING. The Initial Purchaser has advised the
Company, and the Company understands, that the Initial Purchaser will make
offers to sell (the "EXEMPT RESALES") some or all of the Notes purchased by the
Initial Purchaser hereunder on the terms set forth in the Offering Circular to
persons (the "SUBSEQUENT Purchasers") whom the Initial Purchaser reasonably
believes to be (a) "qualified institutional buyers" as defined in Rule 144A
under the Act ("QIBS"), as such Rule may be
amended from time to time, (b) a limited number of institutional "accredited
investors" as defined in Rule 501(a)(1), (2), (3) or (7) under the Act
("ACCREDITED INVESTORS"), as such Rules may be amended from time to time, that
make certain representations or warranties to the Initial Purchaser as set forth
in the Accredited Investor Letter (the "ACCREDITED INVESTOR LETTER") attached as
Annex A to the Offering Circular or (c) non-U.S. persons permitted to purchase
the Notes in offshore transactions in reliance upon Regulation S under the Act
(each, a "REG S PERSON" and, together with QIBs and Accredited Investors,
"ELIGIBLE PURCHASERS").
Pursuant to the Indenture, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇'▇ Holding Inc. (the
"DIRECT PARENT") and all Domestic Restricted Subsidiaries of the Company shall
fully and unconditionally guarantee, to the extent provided in the Indenture, on
a senior secured basis, to each holder of the Notes and the Trustee, the full
performance of the Company's obligations under the Indenture and the Notes (the
Direct Parent and each such Domestic Restricted Subsidiary being referred to
herein as a "GUARANTOR" and each such guarantee being referred to herein as a
"GUARANTEE").
In connection with entering into the Credit Agreement, the Company, the
Guarantors, the Trustee and the lender under the Credit Agreement shall enter
into an Intercreditor Agreement, to be dated as of the Closing Date, in a form
reasonably satisfactory to the Initial Purchaser, which form shall be attached
as an exhibit to the Indenture (the "INTERCREDITOR AGREEMENT").
On the Closing Date, the Company and the Guarantors will enter into
certain collateral agreements (together with the Intercreditor Agreement, the
"COLLATERAL AGREEMENTS"), which will provide for the grant of second priority
security interests (subject to a prior ranking lien by the lender under the
Credit Agreement and certain other Permitted Liens (as defined, and provided
for, in the Indenture)) (the "SECURITY INTERESTS") in substantially all of the
assets of the Company (other than Excluded Assets).
On or before the Closing Date, the Company's indirect parent, P&MC's
Holding Corp. ("PARENT") will deliver a promissory note (the "PARENT LOAN") to
Jefferies High Yield Trading LLC and/or one or more of its designees reasonably
acceptable to Parent, which will provide for a senior secured loan to Parent in
the amount of $8.947 million and guaranteed (the "PARENT LOAN GUARANTEE") by
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners IV, L.P. (the "PARENT LOAN GUARANTOR").
On or before the Closing Date, Parent will make an indirect equity
contribution to the Company of $8.5 million, all of which will be funded with
the proceeds from the Parent Loan (the "EQUITY CONTRIBUTION").
This Agreement, the Indenture, the Collateral Agreements, the Notes, the
Credit Agreement and the Guarantees are collectively referred to herein as the
"TRANSACTION DOCUMENTS." The Offering, the Credit Agreement, the Equity
Contribution and application of the net proceeds therefrom are collectively
referred to herein as the "TRANSACTIONS."
3. PURCHASE, SALE AND DELIVERY. 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 Purchaser, and the Initial Purchaser agrees to
purchase from the Company, the Notes at a purchase price of 90.16% of the
aggregate principal amount thereof. Delivery to the Initial Purchaser of and
payment for the Notes shall be made at a Closing (the "CLOSING") to be held at
10:00 a.m., New York time, on September 24, 2008 (the "CLOSING DATE") at the New
York offices of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP.
The Company shall deliver to the Initial Purchaser one or more
certificates representing the Notes in global form against payment by the
Initial Purchaser of the purchase price therefor by immediately
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available Federal funds bank wire transfer to such bank account or accounts as
the Company shall designate to the Initial Purchaser at least two business days
prior to the Closing. Notes to be represented by one or more definitive global
securities in book-entry form will be deposited on the Closing Date, by or on
behalf of the Company, with The Depository Trust Company ("DTC") or its
designated custodian, and registered in the name of Cede & Co.
In addition to the purchase price for the Notes, the foregoing wire
transfer shall reflect the payment by the Company to the Initial Purchaser of a
fee in the amount of $1.0 million for financial advisory services in connection
with the Offering.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
GUARANTORS. The Company and the Guarantors jointly and severally represent and
warrant to the Initial Purchaser that, as of the date hereof and as of the
Closing Date:
(a) As of the Applicable Time, the Offering Circular does not,
and at the Closing Date, will not, contain 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, except that the representations and warranties
set forth in this Section 4(a) do not apply to statements or omissions
made in reliance upon and in conformity with the Initial Purchaser
Information (as defined in Section 12). The Offering Circular contained
as of its date all the information specified in, and meets the
requirements of, Rule 144A(d)(4) under the Act. No injunction or order
has been issued and no proceeding is pending, or to the knowledge of the
Company, threatened that either (i) asserts that any of the Transactions
is subject to the registration requirements of the Act or (ii) would
prevent or suspend the issuance or sale of any of the Notes or the use of
the Offering Circular in any jurisdiction.
(b) Each corporation, partnership, or other entity in which the
Company, directly or indirectly through any of its subsidiaries, owns
more than fifty percent (50%) of any class of equity securities or
interests is listed on Schedule I attached hereto (the "SUBSIDIARIES").
(c) Each of the Company, the Subsidiaries and the Direct Parent
(i) has been duly organized or formed, as the case may be, is validly
existing and is in good standing under the laws of its jurisdiction of
organization, (ii) has all requisite power and authority to carry on its
business and to own, lease and operate its properties and assets, and
(iii) is duly qualified or licensed to do business and is in good
standing as a foreign corporation, limited liability company or other
entity, as the case may be, authorized to do business in each
jurisdiction in which the nature of such businesses or the ownership or
leasing of such properties requires such qualification, except where the
failure to be so qualified would not, individually or in the aggregate,
have a material adverse effect on (A) the properties, business,
prospects, operations, earnings, assets, liabilities or condition
(financial or otherwise) of the Company, the Subsidiaries and the Direct
Parent taken as a whole, (B) the ability of the Company or the Guarantors
to perform their respective obligations in all material respects under
any Transaction Document, (C) the enforceability of any Collateral
Agreement or the attachment, perfection or priority of any of the Liens
intended to be created thereby, (D) the validity or enforceability of any
of the Transaction Documents, or (E) the consummation of any of the
transactions contemplated under any of the Transaction Documents (each, a
"MATERIAL ADVERSE EFFECT"). -----------------------
(d) All of the issued and outstanding shares of capital stock of
or partnership or membership interests in, as the case may be, the
Company, the Subsidiaries and the Direct Parent have been duly authorized
and validly issued, are fully paid and nonassessable, and were not issued
in violation of, and are not subject to, any preemptive or similar
rights. The table under
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the caption "CAPITALIZATION" in the Offering Circular (including the
footnotes thereto) sets forth, as of its date, (i) the actual cash and
cash equivalents and capitalization of the Company and the Subsidiaries
on a consolidated basis and (ii) the pro forma cash and cash equivalents
and capitalization of the Company and the Subsidiaries, on a consolidated
basis, after giving effect to the Transactions. Except as set forth in
such table, immediately following the Closing, neither the Company nor
any of the Subsidiaries will have any liabilities, absolute, accrued,
contingent or otherwise, other than (A) liabilities that are reflected in
the Financial Statements (as hereinafter defined) or (B) liabilities
incurred subsequent to the date thereof in the ordinary course of
business, consistent with past practice, or in connection with the
Transactions, that would not, individually or in the aggregate, have a
Material Adverse Effect. All of the outstanding shares of capital stock
or other equity interests of each of the Subsidiaries are owned, directly
or indirectly, by the Company, and all of the outstanding shares of
capital stock or other equity interests of the Company are owned,
directly or indirectly, by the Direct Parent, in each case free and clear
of all liens, security interests, mortgages, pledges, charges, equities,
claims or restrictions on transferability or encumbrances of any kind
(collectively, "LIENS"), except as set forth ----- in the Offering
Circular and other than those imposed by the Act and the securities or
"Blue Sky" laws of certain domestic or foreign jurisdictions and Liens
(i) securing, prior to the consummation of the Closing, Indebtedness
outstanding under the Amended & Restated Credit Agreement, dated as of
September 21, 2005, amended and restated as of May 3, 2006, by and among
the Company and the lenders thereto, as amended from time to time, and
(ii) constituting Permitted Liens. Except as disclosed in the Offering
Circular, there are no outstanding (A) options, warrants or other rights
for third parties to purchase from the Company or any of the
Subsidiaries, (B) agreements, contracts, arrangements or other
obligations of the Company or any of the Subsidiaries to issue to third
parties or (C) other rights of third parties to convert any obligation
into or exchange any securities for, in the case of each of clauses (A)
through (C), shares of capital stock of or other ownership or equity
interests in the Company or any of the Subsidiaries.
(e) Each of the Company, the Direct Parent and the Subsidiaries
that are corporations have the requisite corporate power and authority,
and each of the Subsidiaries that are limited liability companies have
the requisite power and authority, to execute, deliver and perform their
respective obligations under the Transaction Documents to which they are
a party and to consummate the Transactions.
(f) This Agreement has been duly and validly authorized, executed
and delivered by the Company and the Guarantors. Each of the Indenture
and the Collateral Agreements has been duly and validly authorized by the
Company and the Guarantors. Each of the Indenture and the Collateral
Agreements, when executed and delivered by the Company and the
Guarantors, will constitute a legal, valid and binding obligation of each
of the Company and the Guarantors, enforceable against each of the
Company and the Guarantors in accordance with its terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, receivership, moratorium, fraudulent conveyance or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (whether applied by a
court of law or equity) and the discretion of the court before which any
proceeding therefor may be brought.
(g) The Notes, when issued, will be in the form contemplated by
the Indenture. When executed and delivered by the Company and the
Guarantors, the Indenture will meet the requirements for qualification
under the Trust Indenture Act of 1939, as amended (the "TIA"). The Notes
have been duly and validly authorized by --- each of the Company and,
when delivered to and paid for by the Initial Purchaser in accordance
with the terms of this Agreement and the Indenture, will have been duly
executed, issued and delivered and will be legal, valid and binding
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obligations of the Company, entitled to the benefit of the Indenture and
the Collateral Agreements, and enforceable against the Company in
accordance with their terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, receivership,
moratorium, fraudulent conveyance or other similar laws now or hereafter
in effect relating to creditors' rights generally and (ii) general
principles of equity (whether applied by a court of law or equity) and
the discretion of the court before which any proceeding therefor may be
brought.
(h) The Guarantees have been duly and validly authorized by the
Guarantors and, when executed by the Guarantors, will have been duly
executed, issued and delivered and will be legal, valid and binding
obligations of the Guarantors, entitled to the benefit of the Indenture
and the Collateral Agreements and enforceable against the Guarantors in
accordance with their terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, receivership,
moratorium, fraudulent conveyance or other similar laws now or hereafter
in effect relating to creditors' rights generally and (ii) general
principles of equity (whether applied by a court of law or equity) and
the discretion of the court before which any proceeding therefor may be
brought.
(i) None of the Company, any of the Subsidiaries or the Direct
Parent is in violation of its certificate of incorporation, bylaws or
other organizational documents (the "CHARTER DOCUMENTS"). None of the
Company, any of the Subsidiaries or the Direct Parent is (i) in violation
of any federal, state, local or foreign statute, law (including, without
limitation, common law) or ordinance, or any judgment, decree, rule,
regulation or order (collectively, "APPLICABLE LAW") of any federal,
state, local and other governmental authority, governmental or regulatory
agency or body, court, arbitrator or self-regulatory organization,
domestic or foreign (each, a "GOVERNMENTAL AUTHORITY"), applicable to any
of them or any of their respective properties, or (ii) in breach of or
default under any bond, debenture, note or other evidence of
indebtedness, indenture, mortgage, deed of trust, lease or any other
agreement or instrument to which any of them is a party or by which any
of them or their respective property is bound (collectively, "APPLICABLE
AGREEMENTS"), in either case other than those that would not reasonably
be expected to have, individually or in the aggregate, a Material Adverse
Effect. All Applicable Agreements are in full force and effect and are
legal, valid and binding obligations of the Company or the Guarantors, as
applicable, other than as disclosed in the Offering Circular and except
where failure to be in effect could not reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect. There
exists no condition that, with the passage of time or otherwise, would
constitute (a) a violation of such Charter Documents or Applicable Laws,
(b) a breach of or default under any Applicable Agreement or (c) result
in the imposition of any penalty or the acceleration of any indebtedness,
and in the case of clauses (b) and (c), other than those that have not
resulted, or would not reasonably be expected to result, individually or
in the aggregate, in a Material Adverse Effect.
(j) Neither the execution, delivery or performance of the
Transaction Documents nor the consummation of any transactions
contemplated therein will conflict with, violate, constitute a breach of
or a default (with the passage of time or otherwise) under, require the
consent of any person (other than consents already obtained and in full
force and effect or to be obtained prior to the Closing) under, result in
the imposition of a Lien on any assets of the Company, any of the
Subsidiaries or the Direct Parent (except pursuant to the Transaction
Documents), or result in an acceleration of indebtedness under or
pursuant to (i) the Charter Documents, (ii) any Applicable Agreement or
(iii) any Applicable Law, and in the case of clauses (ii) and (iii),
other than those that have not resulted or would not reasonably be
expected to result, individually or in the aggregate, in a Material
Adverse Effect. Immediately after consummation of the Offering and the
5
transactions contemplated in the Transaction Documents, no Default or
Event of Default (each as defined in the Indenture) will exist.
(k) To the extent described in the Offering Circular, when
executed and delivered, the Transaction Documents will conform in all
material respects to the descriptions thereof in the Offering Circular.
(l) No consent, approval, authorization or order of any
Governmental Authority, or third party is required for the issuance and
sale by the Company of the Notes to the Initial Purchaser or the
consummation by the Company of the other transactions contemplated
hereby, except such as have been obtained 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 Purchaser.
(m) There is no action, claim, suit, demand, hearing, notice of
violation or deficiency, or proceeding, domestic or foreign
(collectively, "PROCEEDINGS"), pending or, to the knowledge of the
Company, any of the Subsidiaries or the Direct Parent, threatened, that
either (i) seeks to restrain, enjoin, prevent the consummation of or
otherwise challenge any of the Transaction Documents or any of the
transactions contemplated therein or (ii) would reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect. The
Company, the Subsidiaries and the Direct Parent are not subject to any
judgment, order, decree, rule or regulation of any Governmental Authority
that would reasonably be expected to, individually or in the aggregate,
have a Material Adverse Effect.
(n) The Company, the Subsidiaries and the Direct Parent possess
all licenses, permits, certificates, consents, orders, approvals and
other authorizations from, and have made all declarations and filings
with, all Governmental Authorities, presently required or necessary to
own or lease, as the case may be, and to operate their respective
properties and to carry on their respective businesses as now or proposed
to be conducted as set forth in the Offering Circular ("PERMITS"), except
where the failure to ------- obtain such Permits would not reasonably be
expected to, individually or in the aggregate, have a Material Adverse
Effect; each of the Company, the Subsidiaries and the Direct Parent has
fulfilled and performed all of its obligations with respect to such
Permits and no event has occurred that allows, or after notice or lapse
of time would allow, revocation or termination thereof or results, or
after notice or lapse of time would result, in any other material
impairment of the rights of the holder of any such Permit, in each case
except as would not reasonably be expected to, individually or in the
aggregate, have a Material Adverse Effect; and none of the Company, any
of the Subsidiaries or the Direct Parent has received any notice of any
proceeding relating to revocation or modification of any such Permit,
except as described in the Offering Circular or except where such
revocation or modification would not reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect.
(o) Each of the Company, the Subsidiaries and the Direct Parent
has good and marketable title to all real property owned by it and good
title to all personal property owned by it and good and marketable title
to all leasehold estates in real and personal property being leased by it
and, as of the Closing Date, free and clear of all Liens (other than
Permitted Liens) in each case except as described in the Offering
Circular and except as would not reasonably be expected to, individually
or in the aggregate, have a Material Adverse Effect. All Applicable
Agreements to which the Company, any of the Subsidiaries or the Direct
Parent is a party or by which any of them is bound are valid and
enforceable against each of the Company, such Subsidiary or the Direct
Parent, as applicable, and, to the knowledge of the Company, are valid
and enforceable against the other party or parties thereto and are in
full force and effect with only such exceptions
6
as those that would not reasonably be expected to, individually or in the
aggregate, have a Material Adverse Effect.
(p) All Tax returns required to be filed by the Company, each of
the Subsidiaries and the Direct Parent have been filed and all such
returns are true, complete, and correct in all material respects. All
material Taxes that are due from the Company, the Subsidiaries and the
Direct Parent have been paid other than those (i) currently payable
without penalty or interest or (ii) being contested in good faith and by
appropriate proceedings and for which adequate reserves have been
established in accordance with generally accepted accounting principles
of the United States, consistently applied ("GAAP"). There are ---- no
actual or, to the knowledge of the Company, proposed Tax assessments
against the Company, any of the Subsidiaries or the Direct Parent that
could reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect. The accruals and reserves on the books and
records of the Company, the Subsidiaries and the Direct Parent in respect
of any material Tax liability for any period not finally determined are
adequate to meet any assessments of Tax for any such period. For purposes
of this Agreement, the term "Tax" and "Taxes" shall mean all federal,
state, local and foreign taxes, and other assessments of a similar nature
(whether imposed directly or through withholding), including any
interest, additions to tax or penalties applicable thereto.
(q) Each of the Company, the Subsidiaries and the Direct Parent
owns, or is licensed under, and has the right to use, all patents, patent
rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks, logos, designs, trade names and domain names (collectively,
"INTELLECTUAL PROPERTY") necessary for the conduct of its businesses and,
as of the Closing Date, free and clear of all Liens, other than Permitted
Liens, except as could not reasonably be expected to, individually or in
the aggregate, have a Material Adverse Effect. No claims or notices of
any potential claim have been asserted against the Company, the
Subsidiaries or the Direct Parent by any person challenging the use of
any such Intellectual Property by the Company, any of the Subsidiaries or
the Direct Parent or questioning the validity, ownership, enforceability
or effectiveness of the Intellectual Property or any license or agreement
related thereto (other than any claims that, if successful, would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect). Neither the Company, nor to the Company's
knowledge, any other party to any licenses, sublicenses, and other
agreements or arrangements to which the Company is a party and pursuant
to which any other Person is authorized to have access to, or use of,
Intellectual Property owned by the Company, or to exercise any other
right with regard thereto ("INTELLECTUAL PROPERTY LICENSES"), is in
breach or default under such Intellectual Property License, and no event
has occurred which with notice or lapse of time would constitute a breach
or default by the Company (or to the Company's knowledge any other party
thereto) or permit termination, thereunder; and no notice of default with
respect to any such Intellectual Property License has been sent or
received by the Company. To the knowledge of the Company, neither the
conduct of the Company's business nor the use of such Intellectual
Property by the Company, any of the Subsidiaries or the Direct Parent
infringes upon, violates or misappropriates the Intellectual Property
rights of any other person, and there are no pending or, to the knowledge
of the Company, threatened, proceedings or litigation or other adverse
claims or communications by any person alleging any such infringement,
violation or misappropriation.
(r) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) material
transactions are executed in accordance with management's general or
specific authorization, (ii) material transactions are recorded as
necessary to permit preparation of financial statements in conformity
with GAAP, and to
7
maintain asset accountability, (iii) access to assets is permitted only
in accordance with management's general or specific authorization and
(iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any material differences.
(s) The audited consolidated financial statements and related
notes of the Company and the Subsidiaries contained in the Offering
Circular (the "FINANCIAL STATEMENTS") present fairly in all material
respects the financial position, results of operations and cash flows of
the Company and its consolidated Subsidiaries, as of the respective dates
and for the respective periods to which they apply and have been prepared
in accordance with GAAP and the requirements of Regulation S-X of the
Act. The financial data set forth under "SUMMARY CONSOLIDATED HISTORICAL
FINANCIAL INFORMATION" and "SELECTED CONSOLIDATED HISTORICAL FINANCIAL
DATA" included in the Offering Circular has been prepared on a basis
consistent with that of the Financial Statements and present fairly in
all material respects the financial position and results of operations of
the Company and its consolidated Subsidiaries as of the respective dates
and for the respective periods indicated. All other financial,
statistical, market and industry-related data included in the Offering
Circular are fairly and accurately presented and are based on or derived
from sources that the Company believes to be reliable and accurate.
(t) Subsequent to the dates as of which information is given in
the Offering Circular, (i) none of the Company, any of the Subsidiaries
or the Direct Parent has incurred any liabilities, direct or contingent,
that are material, individually or in the aggregate, to the Company,
other than in the ordinary course of business consistent with past
practices, or the Guarantors, or has entered into any transactions not in
the ordinary course of business, (ii) there has not been any material
decrease in the capital stock or any material increase in long-term
indebtedness or any material increase in short-term indebtedness of the
Company, the Subsidiaries or the Direct Parent, or any payment of or
declaration to pay any dividends or any other distribution with respect
to the Company, the Subsidiaries or the Direct Parent, and (iii) there
has not been any material adverse change in the properties, business,
prospects, operations, earnings, assets, liabilities or condition
(financial or otherwise) of the Company, the Subsidiaries and the Direct
Parent in the aggregate (each of clauses (i), (ii) and (iii), a "MATERIAL
ADVERSE CHANGE"). To the knowledge of the Company, there is no event that
is reasonably likely to occur, which if it were to occur, would,
individually or in the aggregate, have a Material Adverse Effect, except
as disclosed in the Offering Circular.
(u) No "nationally recognized statistical rating organization"
(as such term is defined for purposes of Rule 436(g)(2) under the Act)
(i) has imposed (or has informed the Company that it is considering
imposing) any condition (financial or otherwise) on the Company,
retaining any rating assigned to the Company or any of the Subsidiaries
or to any securities of the Company or any of the Subsidiaries or (ii)
has indicated to the Company that it is considering (A) the downgrading,
suspension or withdrawal of, or any review for a possible change that
does not indicate the direction of the possible change in, any rating so
assigned, or (B) any change in the outlook for any rating of the Company
or any of the Subsidiaries or any securities of the Company or any of the
Subsidiaries.
(v) All indebtedness represented by the Notes is being incurred
for the purposes set forth in the Offering Circular and in good faith. On
the Closing Date, after giving pro forma effect to the Offering and the
use of proceeds therefrom as indicated in the "USE OF PROCEEDS" section
of the Offering Circular, the Company and the Guarantors (i) will be
Solvent, (ii) will have sufficient capital for carrying on the business
it is presently conducting and presently anticipates conducting and (iii)
will be able to pay its debts as they mature. As used in this
8
paragraph, the term "Solvent" means, with respect to a particular date,
that on such date (i) the present fair market value (or present fair
saleable value) of the assets of the Company and the Guarantors is not
less than the total amount required to pay the liabilities of the Company
and the Guarantors on its total existing debts and liabilities (including
contingent liabilities) as they become absolute and matured; (ii) each of
the Company and the Guarantors is able to pay its debts and other
liabilities, contingent obligations and commitments as they mature and
become due in the normal course of business; (iii) assuming consummation
of the issuance of the Notes and Guarantees as contemplated by this
Agreement and the Offering Circular, neither the Company nor any
Guarantor is incurring debts or liabilities beyond its ability to pay as
such debts and liabilities mature; (iv) neither the Company nor any
Guarantor is engaged in any business or transaction, and does not propose
to engage in any business or transaction, for which its property would
constitute unreasonably small capital after giving due consideration to
the prevailing practice in the industry in which the Company or any
Guarantor is engaged; and (v) neither the Company nor any Guarantor is
otherwise insolvent under the standards set forth in applicable laws.
(w) The Company has not and, to its knowledge, no one acting on
its behalf has, (i) taken, directly or indirectly, any action designed to
cause or to result in, or that has constituted or that might reasonably
be expected to constitute, the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of any of
the Notes, (ii) sold, bid for, purchased or paid anyone any compensation
for soliciting purchases of any of the Notes or (iii) except as disclosed
in the Offering Circular, paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities of
the Company; provided, that no representation is made in this subsection
with respect to the actions of the Initial Purchaser.
(x) Without limiting any provision herein, no registration under
the Act and no qualification of the Indenture under the TIA is required
for the sale of the Notes to the Initial Purchaser as contemplated hereby
or for the Exempt Resales, assuming (i) that the purchasers in the Exempt
Resales are QIBs or Accredited Investors or non-U.S. persons (as defined
under Regulation S of the Act) and (ii) the accuracy of the Initial
Purchaser's representations, warranties and agreements contained herein.
(y) The Notes are eligible for resale pursuant to Rule 144A under
the Act and no other securities of the Company are of the same class
(within the meaning of Rule 144A under the Act) 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. No securities
of the Company of the same class as the Notes have been offered, issued
or sold by the Company or any of its Affiliates within the six-month
period immediately prior to the date hereof.
(z) Neither of the Company nor any of its Affiliates or other
person acting on behalf of the Company has offered or sold the Notes by
means of any general solicitation or general advertising within the
meaning of Rule 502(c) under the Act or, with respect to Notes sold
outside the United States to non-U.S. persons (as defined in Rule 902
under the Act), by means of any directed selling efforts within the
meaning of Rule 902 under the Act, and the Company, any affiliate of the
Company and any person acting on behalf of the Company have complied with
and will implement the "offering restrictions" within the meaning of such
Rule 902; provided, that no representation is made in this subsection
with respect to the actions of the Initial Purchaser.
9
(aa) With respect to each employee benefit plan (as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")), and each other employee benefit plan, program, policy
or arrangement (collectively, "BENEFIT PLANS"), maintained, sponsored or
contributed to by the Company, the Subsidiaries or any entity that would
be deemed a "single employer" with the Company or any Subsidiary under
Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as
amended (the "CODE") or Section 4001 of ERISA (each, an "ERISA
AFFILIATE"): (i) each Benefit Plan complies in form and has been
maintained, operated and administered in accordance with its terms and
Applicable Law, including without limitation, ERISA and the Code, except
where non-compliance would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; and (ii) no
"prohibited transaction," within the meaning of Section 4975 of the Code
and Section 406 of ERISA, has occurred or is reasonably expected to occur
with respect to the Benefit Plans that would reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect. None of
the Company, any Subsidiary or any ERISA Affiliate contributes to, is
required to contribute to, or otherwise participated in or participates
in or in any way, directly or indirectly, has any liability with respect
to any plan subject to Section 412 of the Code, Section 302 of ERISA or
Title IV of ERISA, including, without limitation, any "multiemployer
plan" (within the meaning of Sections 3(37) or 4001(a)(3) of ERISA or
Section 414(f) of the Code) or any single employer pension plan (within
the meaning of Section 4001(a)(15) of ERISA) which is subject to Sections
4063, 4064 and 4069 of ERISA.
(bb) Other than as disclosed in the Offering Circular, (i)
neither the Company nor any of the Subsidiaries is party to or bound by
any collective bargaining agreement with any labor organization; (ii)
none of the employees of the Company or the Subsidiaries is represented
by a labor union, and, to the knowledge of the Company, no union
organizing activities are taking place that could, individually or in the
aggregate, have a Material Adverse Effect; (iii) to the Company's
knowledge, no union organizing or decertification efforts are underway or
threatened against the Company or the Subsidiaries; (iv) no labor strike,
work stoppage, slowdown or other material labor dispute is pending
against the Company or the Subsidiaries, or, to the knowledge of the
Company, threatened against the Company or the Subsidiaries; (v) there is
no worker's compensation liability, experience or matter that would be
reasonably expected to, individually or in the aggregate, have a Material
Adverse Effect; (vi) to the knowledge of the Company, there is no
threatened or pending liability against the Company or the Subsidiaries
pursuant to the Worker Adjustment Retraining and Notification Act of
1988, as amended ("WARN"), or any similar state or local law that would
reasonably be expected to, individually or in the ------ aggregate, have
a Material Adverse Effect; (vii) there is no employment-related charge,
complaint, grievance, investigation, unfair labor practice claim or
inquiry of any kind pending against the Company or the Subsidiaries that
would, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and (viii) to the knowledge of the Company, no
employee or agent of the Company or the Subsidiaries has committed any
act or omission giving rise to liability for any violation identified in
subsection (vi) and (vii) above, other than such acts or omissions that
would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(cc) None of the transactions contemplated in the Transaction
Documents or the application of the proceeds by the Company, any of the
Subsidiaries or the Direct Parent of the proceeds of the Notes will
violate or result in a violation of Section 7 of the Exchange Act
(including, without limitation, Regulation T (12 C.F.R. Part 220),
Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of
the Board of Governors of the Federal Reserve System).
10
(dd) None of the Company, any of the Subsidiaries or the Direct
Parent is an open-end investment company, unit investment trust or
face-amount certificate company that is or is required to be registered
under Section 8 of the United States Investment Company Act of 1940 (the
"INVESTMENT COMPANY ACT"); and none of the Company, any of the
Subsidiaries or the Direct Parent, after giving effect to the Offering
and sale of the Notes and the application of the proceeds thereof as
described in the Offering Circular, will be an "investment company" as
defined in the Investment Company Act.
(ee) The Company has not engaged any broker, finder, commission
agent or other person (other than the Initial Purchaser) in connection
with the Offering or any of the transactions contemplated in the
Transaction Documents, and the Company is not under any obligation to pay
any broker's fee or commission in connection with such transactions
(other than commissions or fees to the Initial Purchaser).
(ff) Each of the Company, the Subsidiaries and the Direct Parent
(i) is in compliance with any and all applicable foreign, federal, state
and local laws and regulations relating to health and safety (as it
applies to exposure to hazardous substances), or pollution or the
protection of the environment or the handling, storage, generation,
discharge, treatment or disposal of or the release into the environment
of hazardous or toxic substances, hazardous wastes, pollutants or
contaminants (collectively and individually, "ENVIRONMENTAL LAWS"), (ii)
has received and is in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws
("ENVIRONMENTAL PERMITS") to conduct its respective businesses and (iii)
has not received written notice of a claim, and does not have knowledge
of, any threatened or pending claim for damages to natural resources or
the investigation or remediation of any release or disposal of hazardous
or toxic substances, hazardous wastes, pollutants or contaminants, in
each case, except where such non-compliance with Environmental Laws, such
failure to receive and comply with required Environmental Permits, or
such claim would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business. None of the Company, any
of the Subsidiaries or the Direct Parent has been named as a "potentially
responsible party" under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, or any similar
Environmental Laws requiring them to investigate or remediate any
pollutants or contaminants, except where such requirement would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(gg) As of the Closing Date, there will be no encumbrances or
restrictions on the ability of any Subsidiary of the Company (x) to pay
dividends or make other distributions on such Subsidiary's capital stock
or to pay any indebtedness to the Company or any other Subsidiary of the
Company, (y) to make loans or advances or pay any indebtedness to, or
investments in, the Company or any other Subsidiary of the Company or (z)
to transfer any of its property or assets to the Company or any other
Subsidiary of the Company (other than Permitted Liens that restricted any
such transfer).
(hh) Upon:
i. execution and delivery of the Collateral Agreements by the
Company and the Guarantors and the Collateral Agent (as
defined therein) and compliance by the Company and the
Guarantors with their respective obligations thereunder;
and
ii. the filing or recording of the Collateral Agreements or
appropriate financing statements with the appropriate
filing records, registry or other public office,
11
together with the payment of the requisite filing or
recordation fees related thereto,
the security interest of the Collateral Agent in the Collateral (as defined in
the Collateral Agreements) will be a valid and enforceable perfected security
interest, which security interests will be superior to and prior to the rights
of all third persons other than holders of Permitted Liens.
(ii) As of the Closing Date, except with respect to Permitted
Liens, there will be no currently effective financing statement, security
agreement or other document filed or recorded with any filing records,
registry or other public office, that purports to give notice of any
effective Lien on, or security interest in, any personal property of the
Company and the Guarantors or any rights thereunder.
(jj) Each certificate signed by any officer of the Company, or
any Subsidiary thereof, as the case may be, delivered to the Initial
Purchaser shall be deemed a representation and warranty by the Company or
any such Subsidiary thereof (and not individually by such officer) to the
Initial Purchaser with respect to the matters covered thereby.
(kk) Each of the Company, the Subsidiaries and the Direct Parent
is insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are believed by the Company
to be prudent and customary in the businesses in which they are engaged.
All policies of insurance insuring the Company, the Subsidiaries or the
Direct Parent or their respective businesses, assets, employees, officers
and directors are in full force and effect. The Company, the Subsidiaries
and the Direct Parent are in compliance with the terms of such policies
and instruments in all material respects, and there are no claims by the
Company, any of the Subsidiaries or the Direct Parent under any such
policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause. None of the
Company, any such Subsidiary or the Direct Parent has been refused any
insurance coverage sought or applied for, and none of the Company, any
such Subsidiary or the Direct Parent has any reason to believe that it
will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not,
individually or in the aggregate, have a Material Adverse Effect.
(ll) All information certified by an officer of the Company in
the Perfection Certificate dated the date hereof and delivered by such
officer on behalf of the Company is true and correct both as of the date
hereof and as of the Closing Date.
(mm) There is and has been no failure on the part of the Company,
the Subsidiaries or the Direct Parent or any of the officers and
directors of the Company, any of the Subsidiaries or the Direct Parent,
in their capacities as such, to comply in all material respects with the
applicable provisions of The ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and
regulations in connection therewith.
(nn) Set forth on Schedule II hereto is a list of all
Indebtedness that is to be paid in full using the proceeds of the
Offering and terminated, retired or redeemed, as applicable, on the
Closing Date. Set forth on Schedule II opposite the description of each
such Indebtedness is the aggregate principal amount of Indebtedness
outstanding thereunder.
5. COVENANTS OF THE COMPANY AND THE GUARANTORS. Each of the
Company and the Guarantors jointly and severally agrees:
12
(a) At any time prior to the date of the completion of the resale
of the Notes by the Initial Purchaser, the Company shall (i) advise the
Initial Purchaser promptly after obtaining knowledge (and, if requested
by the Initial Purchaser, confirm such advice in writing) of (A) the
issuance by any state securities commission of any stop order suspending
the qualification or exemption from qualification of any of the Notes for
offer or sale in any jurisdiction, or the initiation of any proceeding
for such purpose by any state securities commission or other regulatory
authority, or (B) the happening of any event that makes any statement of
a material fact made in the Offering Circular untrue or that requires the
making of any additions to or changes in the Offering Circular in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, (ii) use its commercially
reasonable efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption from qualification of any of
the Notes under any state securities or Blue Sky laws, and (iii) if, at
any time, any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption from
qualification of any of the Notes under any such laws, use its
commercially reasonable efforts to obtain the withdrawal or lifting of
such order at the earliest possible time.
(b) To (i) furnish the Initial Purchaser, without charge, as many
copies of the Offering Circular, and any amendments or supplements
thereto, as the Initial Purchaser may reasonably request, and (ii)
promptly prepare, upon the Initial Purchaser's reasonable request, any
amendment or supplement to the Offering Circular that the Initial
Purchaser, upon advice of legal counsel, determines may be necessary in
connection with Exempt Resales (and the Company hereby consents to the
use of the Offering Circular, and any amendments and supplements thereto,
by the Initial Purchaser in connection with Exempt Resales).
(c) Not to amend or supplement the Offering Circular prior to the
Closing Date, or at any time prior to the completion of the resale by the
Initial Purchaser of all the Notes purchased by the Initial Purchaser,
unless the Initial Purchaser shall previously have been advised thereof
and shall have provided its written consent thereto (which consent shall
not be unreasonably withheld).
(d) So long as the Initial Purchaser shall hold any of the Notes,
(i) if any event shall occur as a result of which, in the reasonable
judgment of the Company or the Initial Purchaser, it becomes necessary or
advisable to amend or supplement the Offering Circular in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary to amend or
supplement the Offering Circular to comply with Applicable Law, to
prepare, at the expense of the Company, an appropriate amendment or
supplement to the Offering Circular (in form and substance reasonably
satisfactory to the Initial Purchaser) so that (A) as so amended or
supplemented, the Offering Circular will not include an untrue statement
of material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (B) the Offering Circular will
comply with Applicable Law and (ii) if in the reasonable judgment of the
Company it becomes necessary or advisable to amend or supplement the
Offering Circular so that the Offering Circular will contain all of the
information specified in, and meet the requirements of, Rule 144A(d)(4)
of the Act, to prepare an appropriate amendment or supplement to the
Offering Circular (in form and substance reasonably satisfactory to the
Initial Purchaser) so that the Offering Circular, as so amended or
supplemented, will contain the information specified in, and meet the
requirements of, such Rule.
(e) To cooperate with the Initial Purchaser and the Initial
Purchaser's counsel in connection with the qualification of the Notes
under the securities or Blue Sky laws of such
13
jurisdictions as the Initial Purchaser may reasonably request and
continue such qualification in effect so long as reasonably required for
Exempt Resales.
(f) Whether or not any of the Offering or the transactions
contemplated under the Transactions are consummated or this Agreement is
terminated, to pay (i) all costs, expenses, fees and taxes incident to
and in connection with: (A) the preparation, printing and distribution of
the Offering Circular and all amendments and supplements thereto
(including, without limitation, financial statements and exhibits), and
all other agreements, memoranda, correspondence and other documents
prepared and delivered in connection herewith, (B) the negotiation,
printing, processing and distribution (including, without limitation,
word processing and duplication costs) and delivery of, each of the
Transaction Documents, (C) the preparation, issuance and delivery of the
Notes, (D) the qualification of the Notes for offer and sale under the
securities or Blue Sky laws of the several states (including, without
limitation, the fees and disbursements of the Initial Purchaser's counsel
relating to such registration or qualification) and (E) furnishing such
copies of the Offering Circular, and all amendments and supplements
thereto, as may reasonably be requested for use by the Initial Purchaser,
(ii) all fees and expenses of the counsel, accountants and any other
experts or advisors retained by the Company, (iii) all expenses and
listing fees in connection with the application for quotation of the
Notes on the Private Offerings, Resales and Trading Automated Linkages
("PORTAL") market, (iv) all fees and expenses (including fees and
expenses of counsel) of the Company in connection with approval of the
Notes by DTC for "book-entry" transfer, (v) all fees charged by rating
agencies in connection with the rating of the Notes, (vi) all fees and
expenses (including reasonable fees and expenses of counsel) of the
Trustee and all collateral agents, (vii) all costs and expenses in
connection with the creation and perfection of the Security Agreement
(including without limitation, filing and recording fees, search fees,
taxes and costs of title policies) and (viii) all fees, disbursements and
out-of-pocket expenses incurred by the Initial Purchaser in connection
with its services to be rendered hereunder including, without limitation,
50% of the fees and disbursements of Proskauer Rose LLP, counsel to the
Initial Purchaser, travel and lodging expenses, word processing charges,
messenger and duplicating services, facsimile expenses and other
customary expenditures. If the sale of the Notes provided for herein is
not consummated because any condition to the obligations of the Initial
Purchaser set forth in SECTION 7 hereof is not satisfied, because this
Agreement is terminated pursuant to SECTION 9 hereof or because of any
failure, refusal or inability on the part of the Company to perform all
obligations and satisfy all conditions on its part to be performed or
satisfied hereunder (other than in each such case solely by reason of a
default by the Initial Purchaser on its obligations hereunder after all
conditions hereunder have been satisfied in accordance herewith), the
Company agrees to promptly reimburse the Initial Purchaser in cash upon
demand for all fees, disbursements and out-of-pocket expenses (including
50% of the fees, disbursements and charges of Proskauer Rose LLP, counsel
for the Initial Purchaser) to be paid in cash that shall have been
incurred by the Initial Purchaser in connection with the proposed
purchase and sale of the Notes.
(g) To use the proceeds of the Offering in the manner described
in the Offering Circular under the caption "USE OF PROCEEDS."
(h) To do and perform all things required to be done and
performed under the Transaction Documents prior to and after the Closing
Date.
(i) Not to, and to ensure that no affiliate (as defined in Rule
501(b) of the Act) of the Company will, sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any "security" (as
defined in the Act) that would be integrated with the sale of the Notes
in a manner
14
that would require the registration under the Act of the sale to the
Initial Purchaser or to the Subsequent Purchasers of the Notes.
(j) For so long as any of the Notes remain outstanding, during
any period in which the Company is not subject to Section 13 or 15(d) of
the Exchange Act, to make available, upon request, to any owner of the
Notes in connection with any sale thereof and any prospective Subsequent
Purchasers of such Notes from such owner, the information required by
Rule 144A(d)(4) under the Act.
(k) To comply with the representation letter of the Company to
DTC relating to the approval of the Notes by DTC for "book entry"
transfer.
(l) To use its commercially reasonable efforts to effect the
inclusion of the Notes in Private Offerings, Resales and Trading through
Automated Linkages Market.
(m) For so long as any of the Notes remain outstanding, to
furnish to the Initial Purchaser copies of all reports and other
communications (financial or otherwise) furnished by the Company to the
Trustee or to 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 SEC or any national securities exchange on which any
class of securities of the Company may be listed.
(n) To not, and to not authorize or permit any person acting on
its behalf to, (i) distribute any offering material in connection with
the offer and sale of the Notes other than the Offering Circular and any
amendments and supplements to the Offering Circular prepared in
compliance with this Agreement, or (ii) solicit any offer to buy or offer
to sell the Notes by means of any form of general solicitation or general
advertising (including, without limitation, as such 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.
(o) During the one-year period after the Closing Date (or such
shorter period as may be provided for in Rule 144 under the Act, as the
same may be in effect from time to time), the Company shall not, and
shall not permit any current or future Subsidiaries of either the Company
or any other affiliates (as defined in Rule 144A under the Act)
controlled by the Company to, resell any of the Notes that constitute
"restricted securities" under Rule 144 that have been reacquired by the
Company, any current or future Subsidiaries or any other "affiliates" (as
defined in Rule 144A under the Act) controlled by the Company, except
pursuant to an effective registration statement under the Act.
(p) To pay all stamp, documentary and transfer taxes and other
duties, if any, which may be imposed by the United States or any
political subdivision thereof or taxing authority thereof or therein with
respect to the issuance of the Notes or the sale thereof to the Initial
Purchaser.
(q) To use its best efforts to complete on or prior to the
Closing Date all filings and other similar actions required in connection
with the perfection of security interests as and to the extent
contemplated by the Collateral Agreements.
(r) The Company shall, no later than September 25, 2008, file
Amendment No. 2 to its Annual Report on Form 10-K for the fiscal year
ended December 30, 2007 originally filed on March 27, 2008.
15
6. REPRESENTATIONS AND WARRANTIES OF THE INITIAL PURCHASER. The
Initial Purchaser represents and warrants that:
(a) It is a QIB under the Act and it will offer the Notes for
resale only upon the terms and conditions set forth in this Agreement and
in the Offering Circular.
(b) It is not acquiring the Notes with a view to any distribution
thereof that would violate the Act or the securities laws of any state of
the United States or any other applicable jurisdiction. In connection
with the Exempt Resales, it will solicit offers to buy the Notes only
from, and will offer and sell the Notes only to, (A) persons reasonably
believed by the Initial Purchaser to be QIBs or (B) persons reasonably
believed by the Initial Purchaser to be Accredited Investors or (C)
non-U.S. persons reasonably believed by the Initial Purchaser to be a
purchaser referred to in Regulation S under the Act; provided, however,
that in purchasing such Notes, such persons are deemed to have
represented and agreed as provided under the caption "NOTICE TO
INVESTORS" contained in the Offering Circular.
(c) No form of general solicitation or general advertising in
violation of the Act has been or will be used nor will any offers in any
manner involving a public offering within the meaning of Section 4(2) of
the Act or, with respect to Notes to be sold in reliance on Regulation S,
by means of any directed selling efforts be made by such Initial
Purchaser or any of its representatives in connection with the offer and
sale of any of the Notes.
(d) The Initial Purchaser will deliver to each Subsequent
Purchaser of the Notes, in connection with its original distribution of
the Notes, a copy of the Offering Circular, as amended and supplemented
at the date of such delivery.
7. CONDITIONS. The obligations of the Initial Purchaser to
purchase the Notes under this Agreement are subject to the performance by each
of the Company and each of the Guarantors of their respective covenants and
obligations hereunder and the satisfaction of each of the following conditions:
(a) All of the representations and warranties of the Company, the
Subsidiaries and the Direct Parent contained in this Agreement and in
each of the Transaction Documents shall be true and correct as of the
date hereof and at the Closing Date. On or prior to the Closing Date, the
Company and each other party to the Transaction Documents (other than the
Initial Purchaser) shall have performed or complied with all of the
agreements and satisfied all conditions on their respective parts to be
performed, complied with or satisfied pursuant to the Transaction
Documents (other than conditions to be satisfied by such other parties,
which the failure to so satisfy would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect).
(b) No injunction, restraining order or order of any nature by a
Governmental Authority shall have been issued as of the Closing Date that
would prevent or materially interfere with the consummation of the
Offering or any of the transactions contemplated under the Transaction
Documents; and no stop order suspending the qualification or exemption
from qualification of any of the Notes in any jurisdiction shall have
been issued and no Proceeding for that purpose shall have been commenced
or, to the knowledge of the Company, be pending or contemplated as of the
Closing Date.
(c) No action shall have been taken and no Applicable Law shall
have been enacted, adopted or issued that would, as of the Closing Date,
prevent the consummation of the Offering
16
or any of the transactions contemplated under the Transaction Documents.
No Proceeding shall be pending or, to the knowledge of the Company,
threatened other than Proceedings that (A) if adversely determined would
not, individually or in the aggregate, adversely affect the issuance or
marketability of the Notes, and (B) would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and
information is given in the Offering Circular, there shall not have been
any Material Adverse Change.
(e) The Notes shall have been designated PORTAL securities in
accordance with the rules and regulations adopted by the Financial
Industry Regulatory Authority relating to trading in The PORTAL Market.
(f) On or after the date hereof, (i) there shall not have
occurred any downgrading, suspension or withdrawal of, nor shall any
notice have been given of any potential or intended downgrading,
suspension or withdrawal of, or of any review (or of any potential or
intended review) for a possible change that does not indicate the
direction of the possible change in, any rating of the Company or any
securities of the Company (including, without limitation, the placing of
any of the foregoing ratings on credit watch with negative or developing
implications or under review with an uncertain direction) by any
"nationally recognized statistical rating organization" as such term is
defined for purposes of Rule 436(g)(2) under the Act, (ii) there shall
not have occurred any change, nor shall any notice have been given of any
potential or intended change, in the outlook for any rating of the
Company or any securities of the Company by any such rating organization
and (iii) no such rating organization shall have given notice that it has
assigned (or is considering assigning) a lower rating to the Notes than
that on which the Notes were marketed.
(g) The Initial Purchaser shall have received on the Closing
Date:
i. certificates dated the Closing Date, signed by (1) the
Chief Executive Officer and (2) the Chief Financial Officer
of the Company, on behalf of the Company, to the effect
that (a) the representations and warranties set forth in
Section 4 hereof, in each of the Transaction Documents and
the Perfection Certificate are true and correct in all
material respects with the same force and effect as though
expressly made at and as of the Closing Date, (b) the
Company has performed and complied with all agreements and
satisfied all conditions in all material respects on its
part to be performed or satisfied at or prior to the
Closing Date, (c) at the Closing Date, since the date
hereof or since the date of the most recent financial
statements in the Offering Circular (exclusive of any
amendment or supplement thereto after the date hereof), no
event or events have occurred, no information has become
known nor does any condition exist that, individually or in
the aggregate, would reasonably be expected to have a
Material Adverse Effect, (d) since the date of the most
recent financial statements in the Offering Circular
(exclusive of any amendment or supplement thereto after the
date hereof), other than as described in the Offering
Circular or contemplated hereby, none of the Company, any
Subsidiary or the Direct Parent has incurred any
liabilities or obligations, direct or contingent, not in
the ordinary course of business, that are material to the
Company, the Subsidiaries and the Direct Parent, taken as a
whole, or entered into any transactions not in the ordinary
course of business that are material to the business,
condition (financial or otherwise) or results of operations
or prospects of the Company, the Subsidiaries and the
Direct Parent, taken as a whole, and there has not been any
change in the capital stock or long-term indebtedness of
the Company, any Subsidiary or the Direct Parent that is
material to the business, condition
17
(financial or otherwise) or results of operations or
prospects of the Company, the Subsidiaries and the Direct
Parent, taken as a whole, and (e) the sale of the Notes has
not been enjoined (temporarily or permanently);
ii. certificates, dated the Closing Date, executed by the
Secretary of the Company and each Guarantor, certifying
such matters as the Initial Purchaser may reasonably
request;
iii. a certificate of solvency, dated the Closing Date, executed
by the Chief Financial Officer of the Company substantially
in the form previously approved by the Initial Purchaser or
its counsel;
iv. the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the
Company, dated the Closing Date, in the form of Exhibit A
attached hereto; and
v. the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, California counsel to
the Company, dated the Closing Date, in a form reasonably
acceptable to the Initial Purchaser;
vi. an opinion, dated the Closing Date, of Proskauer Rose LLP,
counsel to the Initial Purchaser, in form satisfactory to
the Initial Purchaser covering such matters as are
customarily covered in such opinions.
(h) The Initial Purchaser shall have received with respect to the
Company, from each of (a) Deloitte & Touche LLP, independent registered
public accounting firm, for the fiscal years ended December 31, 2007 and
2006 and (b) from Ernst & Young LLP, independent registered public
accounting firm, for the fiscal year ended December 25, 2005, a customary
comfort letter, dated the date of the Offering Circular, in form and
substance reasonably satisfactory to the Initial Purchaser and its
counsel, with respect to the financial statements and certain financial
information reviewed by such auditor contained in the Offering Circular.
(i) Each of the Transaction Documents shall have been executed
and delivered by all parties thereto, and the Initial Purchaser shall
have received a fully executed original of each Transaction Document.
(j) The Initial Purchaser shall have received copies of all
opinions, certificates, letters and other documents delivered under or in
connection with the Offering or any transaction contemplated in the
Transaction Documents.
(k) The terms of each Transaction Document shall conform in all
material respects to the description thereof in the Offering Circular.
(l) On or prior to the Closing Date, each of Parent and Parent
Loan Guarantor shall have delivered, and performed or complied with all
of the agreements and satisfied all conditions on their respective parts
to be performed, complied with or satisfied pursuant to, the Parent Loan
and Parent Loan Guarantee (other than the completion of the Offering).
(m) On or prior to the Closing Date, Parent shall have made the
Equity Contribution.
(n) The Collateral Agent shall have received (with a copy for the
Initial Purchaser) on the Closing Date:
18
i. appropriately completed copies of Uniform Commercial Code
financing statements naming the Company and each Guarantor
as a debtor and the Collateral Agent as the secured party
identified in Schedule III hereto opposite the name of the
Guarantor;
ii. appropriately completed copies of Uniform Commercial Code
Form UCC 3 termination statements, if any, necessary to
release all Liens (other than Permitted Liens) of any
Person in any collateral described in any Security
Agreement previously granted by any Person;
iii. certified copies of a search report certified by a party
acceptable to the Collateral Agent, dated a date reasonably
near to the Closing Date, listing all effective financing
statements which name the Company or any Guarantor as the
debtor, together with copies of such financing statements
(none of which shall cover any collateral described in any
Collateral Agreement, other than such financing statements
that evidence Permitted Liens); and
iv. the Collateral Agent and its counsel shall be satisfied
that (i) the Lien granted to the Collateral Agent, for the
benefit of the Secured Parties (as defined in the
Collateral Agreements) in the collateral described above is
of the priority described in the Offering Circular; and
(ii) no Lien exists on any of the collateral described
above other than the Lien created in favor of the
Collateral Agent, for the benefit of the Secured Parties,
pursuant to a Collateral Agreement, in each case subject to
the Permitted Liens.
(o) The Initial Purchaser shall have received substantially
contemporaneously with the Closing a copy of the receipt of a payoff
letter from each of the institutions listed on Schedule II attached
hereto.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and each of the Guarantors shall, jointly and
severally, indemnify and hold harmless the Initial Purchaser, and each
person, if any, who controls, within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, the Initial Purchaser (collectively,
the "PURCHASER INDEMNIFIED Persons") against any losses, claims, damages,
liabilities, costs or expenses (collectively, "LOSSES") of any kind to
which the Initial Purchaser or such controlling person may become subject
under the Act, the Exchange Act or otherwise, to the fullest extent
lawful, insofar as any such Losses (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 Circular or any amendment
or supplement thereto or the omission or alleged omission to state, in
the Offering Circular or any amendment or supplement thereto, a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and, subject to the provisions hereof, will reimburse, as
incurred, the Purchaser Indemnified Persons for any legal or other
expenses reasonably incurred by the Purchaser Indemnified Persons in
connection with investigating, defending against or appearing as a
third-party witness in connection with any such Loss in respect thereof;
PROVIDED, that the Company and the Guarantors shall not be liable under
the indemnity provided in this SECTION 8(A) to any Purchaser Indemnified
Party for any Losses that are based on an untrue statement or omission or
alleged untrue statement or omission or alleged omission made in reliance
on, and in conformity with, the Initial Purchaser Information (as defined
in Section 12). The Company and the Guarantors shall not be liable under
this Section 8 for any settlement of any claim or action effected without
their prior written consent, which shall not be unreasonably withheld.
19
(b) The Initial Purchaser shall indemnify and hold harmless each
of the Company and the Guarantors and their respective directors,
officers and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act
against any Losses which the Company or any such director, officer or
controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as such Losses (or actions in respect thereof) have
resulted solely from any untrue statement or alleged untrue statement of
any material fact contained in the Offering Circular, or any amendment or
supplement thereto, or from the omission or alleged omission to state, in
the Offering Circular, or any amendment or supplement thereto, a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case to
the extent (but only to the extent) that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance
upon and in conformity with the Initial Purchaser Information; and,
subject to the limitation set forth immediately preceding this clause,
will reimburse, as incurred, any legal or other expenses incurred by the
Company, each of the Guarantors or any such director, officer or
controlling person in connection with any such Loss or action in respect
thereof.
(c) If any proceeding shall be brought or asserted against any
person entitled to indemnification hereunder (an "INDEMNIFIED PARTY"),
such Indemnified Party shall give prompt written notice to the party or
parties from which such indemnification is sought (the "INDEMNIFYING
PARTIES" and each, an "INDEMNIFYING PARTY"); PROVIDED, that the failure
to so notify the Indemnifying Parties shall not relieve any of the
Indemnifying Parties from any obligation or liability except to the
extent (but only to the extent) that such Indemnifying Party has been
prejudiced materially by such failure. 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 determine, 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 in writing 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 at the expense of the Indemnifying
Party. 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 8 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 one
local counsel in any applicable jurisdiction) 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 8
or the Company in the case of paragraph (b) of this
20
SECTION 8, representing the Indemnified Party under such paragraph (a) or
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 (which consent shall not be unreasonably withheld), unless such
Indemnified Party waived in writing its rights under this SECTION 8, in
which case the Indemnified Party may effect such a settlement without
such consent; provided, that, in any case, any settlement shall be
subject to paragraph (d) of this Section 8. None of the Indemnifying
Parties shall, without the prior written consent of the Indemnified Party
(which consent shall not be unreasonably withheld), consent to entry of
any judgment in or enter into any settlement of any pending or threatened
Proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not any Indemnified Party is a party
thereto) unless such judgment or settlement includes, as an unconditional
term thereof, the giving by the claimant or plaintiff to each Indemnified
Party of a release, in form and substance reasonably satisfactory to the
Indemnified Party, from all Losses that may arise from such Proceeding or
the subject matter thereof (whether or not any Indemnified Party is a
party thereto).
(d) If the indemnification provided for in this SECTION 8 is
unavailable to an Indemnified Party or is insufficient to hold such
Indemnified Party harmless for any Losses in respect of which this
SECTION 8 would otherwise apply by its terms (other than by reason of
exceptions provided in this SECTION 8), then each Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such
Losses (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 hand, from the Offering 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 hand,
in connection with the actions, statements or omissions that resulted in
such Losses (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the
Company, on the one hand, and the Initial Purchaser, on the other hand,
shall be deemed to be in the same proportion as the total proceeds from
the Offering (before deducting expenses) received by the Company, on the
one hand, to the total discounts and commissions received by the Initial
Purchaser, on the other hand. The relative fault of the Company, on the
one hand, and the Initial Purchaser, on the other hand, shall be
determined by reference to, among other things, whether any untrue or
alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company, on the one hand, or the Initial Purchaser, on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission, and any
other equitable considerations appropriate in the circumstances. The
amount paid or payable by an Indemnified Party as a result of any Losses
shall be deemed to include any legal or other fees or expenses incurred
by such party in connection with any Proceeding, to the extent such party
would have been indemnified for such fees or expenses if the
indemnification provided for in this SECTION 8 was available to such
party.
Each party hereto agrees that it would not be just and equitable if
contribution pursuant to this SECTION 8(D) 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
immediately preceding paragraph. Notwithstanding the provisions of this
SECTION 8, the Initial Purchaser shall not be obligated to make
contributions hereunder that in the aggregate exceed the
21
total discounts, commissions and other compensation received by such
Initial Purchaser under this Agreement, less 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. 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 the immediately
preceding paragraph, each person, if any, who controls the 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 Purchaser, and each director of the Company and the Guarantors,
each officer of the Company and the Guarantors and each person, if any,
who controls either of the Company or the Guarantors 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 the Guarantors.
(e) The indemnity and contribution agreements contained in this
SECTION 8 are in addition to any liability that any of the Indemnifying
Parties may otherwise have to the Indemnified Parties, and do not limit
in any way rights or remedies which may otherwise be available at law or
in equity.
9. TERMINATION. The Initial Purchaser may terminate this Agreement
at any time prior to the Closing Date by written notice to the Company if any of
the following has occurred:
(a) since the date hereof, any Material Adverse Effect or
development involving or reasonably expected to result in a prospective
Material Adverse Effect that could, in the Initial Purchaser's sole
judgment, be expected to (i) make it impracticable or inadvisable to
proceed with the offering or delivery of the Notes on the terms and in
the manner contemplated in the Offering Circular, or (ii) materially
impair the investment quality of any of the Notes;
(b) the failure of the Company or the Guarantors to satisfy the
conditions contained in SECTION 7(A) hereof on or prior to the Closing
Date;
(c) any outbreak or escalation of hostilities, or declaration of
war by the United States or other national or international calamity or
crisis, including acts of terrorism, or material adverse change or
disruption in economic conditions in, or in the financial markets of, the
United States (it being understood that any such change or disruption
shall be relative to such conditions and markets as in effect on the date
hereof), if the effect of such outbreak, escalation, calamity, crisis,
act or material adverse change in the economic conditions in, or in the
financial markets of, the United States could be reasonably expected to
make it, in the Initial Purchaser's sole judgment, impracticable or
inadvisable to market or proceed with the offering or delivery of the
Notes on the terms and in the manner contemplated in the Offering
Circular or to enforce contracts for the sale of any of the Notes;
(d) the suspension or limitation of trading generally in
securities on the New York Stock Exchange, the American Stock Exchange or
The NASDAQ Global Market or any setting of limitations on prices for
securities on any such exchange or The NASDAQ Global Market;
(e) the enactment, publication, decree or other promulgation
after the date hereof of any Applicable Law that, in the Initial
Purchaser's counsel's reasonable opinion, materially and adversely
affects, or could be reasonably expected to materially and adversely
affect, the properties, business, prospects, operations, earnings,
assets, liabilities or condition (financial or otherwise) of the Company,
the Subsidiaries and the Direct Parent, taken as a whole;
22
(f) since the date hereof, any securities of the Company shall
have been downgraded or placed on any "watch list" for possible
downgrading by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Act; or
(g) the declaration of a banking moratorium by any Governmental
Authority; or the taking of any action by any Governmental Authority
after the date hereof in respect of its monetary or fiscal affairs that,
in the Initial Purchaser's opinion, could reasonably be expected to have
a material adverse effect on the financial markets in the United States
or elsewhere.
10. SURVIVAL OF REPRESENTATIONS AND INDEMNITIES. The respective
representations and warranties, covenants, indemnities and contribution and
expense reimbursement provisions and other agreements, representations and
warranties of the Company and the Guarantors set forth in or made pursuant to
this Agreement shall remain operative and in full force and effect, and will
survive, regardless of (i) any investigation, or statement as to the results
thereof, made by or on behalf of the Initial Purchaser, (ii) acceptance of the
Notes, and payment for them hereunder, and (iii) any termination of this
Agreement. Without limiting the foregoing, notwithstanding any termination of
this Agreement, the Company shall be and shall remain liable for all expenses
that they have agreed to pay pursuant to SECTIONS 5(F) and 8.
11. NO FIDUCIARY DUTY. The Company hereby acknowledges that the
Initial Purchaser is acting solely in connection with the purchase and sale of
the Notes. The Company further acknowledges that the Initial Purchaser is acting
pursuant to a contractual relationship created solely by this Agreement entered
into on an arm's length basis and in no event do the parties intend that the
Initial Purchaser act or be responsible as a fiduciary to the Company, its
management, stockholders, creditors or any other person in connection with any
activity that the Initial Purchaser may undertake or has undertaken in
furtherance of the purchase and sale of the Notes, either before or after the
date hereof. The Initial Purchaser hereby expressly disclaims any fiduciary or
similar obligations to the Company, either in connection with the transactions
contemplated by this Purchase Agreement or any matters leading up to such
transactions, and the Company hereby confirm their understanding and agreement
to that effect. The Company and the Initial Purchaser agree that they are each
responsible for making their own independent judgments with respect to any such
transactions, and that any opinions or views expressed by the Initial Purchaser
to the Company regarding such transactions, including but not limited to any
opinions or views with respect to the price or market for the Notes, do not
constitute advice or recommendations to the Company. The Company hereby waives
and releases, to the fullest extent permitted by law, any claims that the
Company may have against the Initial Purchaser with respect to any breach or
alleged breach of any fiduciary or similar duty to the Company in connection
with the transactions contemplated by this Purchase Agreement or any matters
leading up to such transactions.
12. INFORMATION SUPPLIED BY THE INITIAL PURCHASER. The name of
the Initial Purchaser set forth on the front cover, back cover and under the
heading "Plan of Distribution" of the Offering Circular, the statements set
forth on the front cover of the Offering Circular with respect to the price of
the Notes and the statements set forth in: (i) the ninth full paragraph on page
ii regarding stabilization by the Initial Purchaser, (ii) the first sentence of
the fourth paragraph and the first, second, third and fourth sentences of the
sixth paragraph under the heading "Plan of Distribution" in the Offering
Circular (to the extent such statements relate to the Initial Purchasers) (the
"Initial Purchaser Information") constitute the only information furnished by
such Initial Purchasers as to themselves to the Company or the Parent for the
purposes of Sections 4(a) and 8 hereof.
23
13. MISCELLANEOUS.
(a) Notices given pursuant to any provision of this Agreement
shall be addressed as follows: (i) if to the Company, to: ▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇'▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. Suite 800, Memphis, Tennessee, 38119,
Attention: ▇▇▇▇ ▇▇▇▇▇, with a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Esq. and (ii) if to the Initial Purchaser, to: ▇▇▇▇▇▇▇▇▇ & Company, Inc.,
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, with a copy to: Proskauer Rose LLP, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. (or in any case to such other address as the
person to be notified may have requested in writing).
(b) This Agreement has been and is made solely for the benefit of
and shall be binding upon the Company and the Guarantors, the Initial
Purchaser and, to the extent provided in SECTION 8 hereof, the
controlling persons, officers, directors, partners, employees,
representatives and agents referred to in SECTION 8, and their respective
heirs, executors, administrators, successors and assigns, all as and to
the extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include a purchaser of any of the
Notes from the Initial Purchaser merely because of such purchase.
(c) 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 REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
(d) EACH OF THE COMPANY AND THE GUARANTORS HEREBY EXPRESSLY AND
IRREVOCABLY (I) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL
AND STATE COURTS SITTING 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; AND (II) WAIVES (A)
ITS RIGHT TO A TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF THE INITIAL PURCHASER AND FOR ANY COUNTERCLAIM RELATED TO ANY
OF THE FOREGOING AND (B) ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY
HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH
COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
(e) This Agreement may be signed in various counterparts, which
together shall constitute one and the same instrument.
(f) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
hereof.
(g) If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force
and effect
24
and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(h) This Agreement may be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may be
given, provided that the same are in writing and signed by all of the
signatories hereto.
[SIGNATURE PAGE FOLLOWS]
Please confirm that the foregoing correctly sets forth the agreement
between the Company, the Guarantors and the Initial Purchaser.
Very truly yours,
COMPANY:
▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇'▇ INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Executive Vice President and
Chief Financial Officer
GUARANTORS:
▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇'▇ HOLDING INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
FIV CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President, Secretary
MACAL INVESTORS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ PIE SHOPS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
[SIGNATURE PAGE TO PURCHASE AGREEMENT]
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ WHOLESALERS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
MCID, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇'▇ REALTY LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
▇▇▇▇▇▇▇ FINANCE CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
WILSHIRE BEVERAGE, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President, Vice President,
Treasurer, Secretary
WILSHIRE RESTAURANT GROUP LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
[SIGNATURE PAGE TO PURCHASE AGREEMENT]
Accepted and Agreed to:
INITIAL PURCHASER:
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
By: /s/ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
[SIGNATURE PAGE TO PURCHASE AGREEMENT]