12 1/2% Senior Notes due
2014
CREDIT SUISSE
SECURITIES (USA) LLC
UBS SECURITIES LLC
GOLDMAN, SACHS & CO.
PIPER JAFFRAY & CO.
c/o Credit Suisse Securities (USA) LLC (“ Credit
Suisse ”)
Eleven
Madison Avenue
New
York, New York 10010-3629
1.
Introductory . Buffets, Inc., a Minnesota corporation (the
“ Issuer ”) proposes, subject to the terms and
conditions stated herein, to issue and sell to the several
purchasers named in Schedule A hereto (the “
Purchasers ”) U.S. $300,000,000 principal amount of
its 12 1/2% Senior Notes due 2014 (the “ Offered
Securities ”). The Offered Securities will be issued
under an indenture to be dated as of November 1, 2006 (the
“ Closing Date ”) (the “ Indenture
”), among the Issuer, the Subsidiary Guarantors (as
hereinafter defined), Buffets Holdings, Inc. (“
Holdings ”) and U.S. Bank National Association, as
trustee (the “ Trustee ”). The United States
Securities Act of 1933, as amended, is herein referred to as the
“ Securities Act .”
As part of the
transactions described in the Preliminary Offering Circular and
Final Offering Circular (as hereinafter defined) (the “
Transactions ”), pursuant to the Agreement and Plan of
Merger dated as of July 24, 2006, among the Issuer and
Ryan’s Restaurant Group, Inc., a South Carolina corporation
(“ Ryan’s ”), and Buffets Southeast, Inc.
(the “ Merger Subsidiary ”) (the “
Merger Agreement ”), Ryan’s will merge (the
“ Merger ”) with and into the Merger Subsidiary,
with Ryan’s remaining as the surviving entity and a
wholly-owned subsidiary of the Issuer. The Offered Securities will
be unconditionally guaranteed (the “ Guarantees
”) on a senior basis by Holdings and the Issuer’s
subsidiaries listed as such on Schedule B hereto (the “
Subsidiary Guarantors ”). Immediately after
consummation of the Merger, the Offered Securities will be
guaranteed on a senior basis by each of the Ryan’s
subsidiaries listed on Schedule B-1 hereto (the “
Ryan’s Guarantors ” and, together with the
Subsidiary Guarantors and Holdings, the “ Guarantors
”). On the Closing Date upon consummation of the Merger,
(i) the Ryan’s Guarantors will each execute counterparts
to this Agreement (the “ Purchase Agreement
Counterparts ”), and (ii) the Issuer, the
Ryan’s Guarantors and the Trustee will enter into a
supplemental indenture relating to the Indenture (the “
Supplemental Indenture ”). In
connection with
the Transactions, the Issuer will enter into a Credit Facility
Agreement among the Issuer, Holdings, the subsidiaries of the
Issuer identified therein as guarantors, the lenders from time to
time party thereto and Credit Suisse as administrative agent, that
will provide for a new credit facility in an aggregate principal
amount of U.S. $640,000,000 (the “ New Credit Facility
”).
Holders (including
subsequent transferees) of the Offered Securities will have the
registration rights set forth in the registration rights agreement
(the “ Registration Rights Agreement ”) to be
dated the Closing Date, for so long as such Offered Securities
constitute “ Transfer Restricted Securities ”
(as defined in the Registration Rights Agreement). Pursuant to the
Registration Rights Agreement, the Issuer will agree to file with
the Securities and Exchange Commission (the “
Commission ”) under the circumstances set forth
therein, (i) a registration statement under the Securities Act
(the “ Exchange Offer Registration Statement ”)
relating to the Offered Securities in a like aggregate principal
amount as the Issuer issued under the Indenture, identical in all
material respects to the Offered Securities and registered under
the Securities Act (the “ Exchange Securities
”), to be offered in exchange for the Offered Securities
(such offer to exchange being referred to as the “
Exchange Offer ”) and (ii) if necessary under the
Registration Rights Agreement, a shelf registration statement
pursuant to Rule 415 under the Securities Act (the “
Shelf Registration Statement ” and, together with the
Exchange Offer Registration Statement, the “ Registration
Statements ”) relating to the resale by certain holders
of the Offered Securities and to use its commercially reasonable
efforts to cause such Registration Statements to be declared
effective and cause such Registration Statements to remain
effective and usable for the periods specified in the Registration
Rights Agreement and to consummate the Exchange Offer. The Offered
Securities and the Exchange Securities are referred to collectively
as the “ Securities .”
This Agreement,
the Purchase Agreement Counterparts, the Registration Rights
Agreement, the Indenture and the Supplemental Indenture are
referred to herein collectively as the “ Operative
Documents .”
The Issuer hereby
agrees with the several Purchasers as follows:
2.
Representations and Warranties of the Issuer, Holdings and the
Subsidiary Guarantors. The Issuer, Holdings and the Subsidiary
Guarantors jointly and severally represent and warrant to, and
agree with, the several Purchasers that:
(a) A preliminary
offering circular (the “ Preliminary Offering Circular
”) relating to the Offered Securities to be offered by the
Purchasers and a final offering circular (the “ Final
Offering Circular ”) disclosing the offering price and
other final terms of the Offered Securities and is dated as of the
date of this Agreement (even if finalized and issued subsequent to
the date of this Agreement) has been or will be prepared by the
Issuer. “ General Disclosure Package ” means the
Preliminary Offering Circular, together with any Issuer Free
Writing Communication (as hereinafter defined) existing at the
Applicable Time (as hereinafter
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defined) and
the other information, if any, distributed at or prior to the
Applicable Time to prospective investors of the Offered Securities,
as evidenced by its being specified in Schedule C to this
Agreement (including the term sheet listing the final terms of the
Offered Securities and their offering, included in Schedule C
to this Agreement, which is referred to as the “ Terms
Communication ”). “ Applicable Time ”
means 5:15 p.m. (New York time) on the date of this Agreement. As
of the date of this Agreement and as of the Closing Date, the Final
Offering Circular does not and will not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. At the
Applicable Time and as of the Closing Date neither (i) the
General Disclosure Package, nor (ii) any individual
Supplemental Marketing Material (as hereinafter defined), when
considered together with the General Disclosure Package, included
or will include any untrue statement of a material fact or omitted
or will omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading. The preceding two sentences
do not apply to statements in or omissions from the Preliminary or
Final Offering Circular, the General Disclosure Package or any
Supplemental Marketing Material based upon written information
furnished to the Issuer by any Purchaser through Credit Suisse
specifically for use therein, it being understood and agreed that
the only such information is that described as such in Section 8(b)
hereof.
“ Free
Writing Communication ” means a written communication (as
such term is defined in Rule 405 under the Securities Act)
that constitutes an offer to sell or a solicitation of an offer to
buy the Offered Securities and is made by means other than the
Preliminary Offering Circular or the Final Offering Circular.
“ Issuer Free Writing Communication ” means a
Free Writing Communication prepared by or on behalf of the Issuer,
used or referred to by the Issuer or containing a description of
the final terms of the Offered Securities or of their offering, in
the form retained in the Issuer’s records. “
Supplemental Marketing Material ” means any Issuer
Free Writing Communication other than any Issuer Free Writing
Communication specified in Schedule C to this Agreement, and
which is specified in Schedule D to this Agreement.
(b) The Issuer has
been duly incorporated and is an existing corporation in good
standing under the laws of the State of Minnesota, with corporate
power and authority to own its properties and conduct its business
as described in the General Disclosure Package; and the Issuer is
duly qualified to do business as a foreign
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corporation in
good standing in all other jurisdictions in which its ownership of
property or the conduct of its business requires such
qualification.
(c) Each
subsidiary of the Issuer has been duly incorporated and is an
existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the General Disclosure Package; and each
subsidiary of the Issuer is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to
so qualify or to be in good standing, singly or in the aggregate,
would not result in a material adverse effect on the condition
(financial or other), business, properties or results of operations
of Holdings and its subsidiaries taken as a whole (a “
Material Adverse Effect ”); all of the issued and
outstanding capital stock of each subsidiary of the Issuer has been
duly authorized and validly issued and is fully paid and
nonassessable; and, except as disclosed in the General Disclosure
Package, the capital stock of each subsidiary owned by the Issuer,
directly or through subsidiaries, is owned free from liens,
encumbrances and defects. A list of all subsidiaries of the Issuer,
indicating their respective jurisdictions of formation or
organization and the Issuer’s direct or indirect ownership
therein is attached as Schedule E.
(d) The entities
listed on Schedule E hereto are the only subsidiaries, direct
or indirect, of the Issuer as of the date of this
Agreement.
(e) The Indenture
has been duly authorized by the Issuer, Holdings and the Subsidiary
Guarantors. On the Closing Date, the Supplemental Indenture will be
duly authorized by the Issuer and the Ryan’s Guarantors. The
Offered Securities have been duly authorized by the Issuer; and
when the Offered Securities are authenticated and delivered by the
Trustee pursuant to the Indenture and paid for pursuant to this
Agreement on the Closing Date, the Indenture will have been duly
executed and delivered, such Offered Securities will have been duly
executed, issued and delivered, will be consistent with the
information in the General Disclosure Package and will conform in
all material respects to the description thereof contained in the
Final Offering Circular; and the Indenture will constitute the
valid and legally binding obligation of the Issuer, Holdings and
the Subsidiary Guarantors and the Offered Securities will
constitute valid and legally binding obligations of the Issuer,
enforceable in accordance with their terms, subject to
bankruptcy,
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insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability from time to time in effect relating to or
affecting creditors’ rights and to general equity principles
(regardless of whether such enforcement is considered in a
proceeding at law or in equity).
(f) The Guarantee
of the Offered Securities has been duly authorized by Holdings and
each Subsidiary Guarantor and, immediately upon consummation of the
Merger, will be duly authorized by each Ryan’s Guarantor.
Each Guarantee by each Guarantor of the Offered Securities, when
issued, will have been duly executed and delivered by each such
Guarantor and will be consistent with the information in the
General Disclosure Package and will conform in all material
respects to the description thereof contained in the Final Offering
Circular. When the Offered Securities and the Guarantees have been
issued, executed and authenticated in accordance with the terms of
this Agreement and the Indenture, each Guarantee of each Guarantor
with respect to such Offered Securities, upon the execution of the
Supplemental Indenture in the case of the Ryan’s Guarantors,
will constitute a valid and legally binding obligation of such
Guarantor, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability from time to
time in effect relating to or affecting creditors’ rights and
to general equity principles (regardless of whether such
enforcement is considered in a proceeding at law or in
equity);
(g) On the Closing
Date, the Exchange Securities will have been duly authorized by the
Issuer; and when the Exchange Securities are issued, executed and
authenticated in accordance with the terms of the Exchange Offer
and the Indenture, the Exchange Securities will constitute valid
and legally binding obligations of the Issuer, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability from time to time in effect relating to or
affecting creditors’ rights and to general equity principles
(regardless of whether such enforcement is considered in a
proceeding at law or in equity).
(h) The guarantee
of the Exchange Securities by Holdings and each Subsidiary
Guarantor has been duly authorized by such guarantor and,
immediately upon consummation of the Merger, will be duly
authorized by each Ryan’s Guarantor; and, when issued, will
have been duly executed and delivered by each such guarantor and
will be consistent with the information in the General Disclosure
Package and will conform in all material respects to the
5
description
thereof contained in the Final Offering Circular. When the Exchange
Securities have been issued, executed and authenticated in
accordance with the terms of the Exchange Offer and the Indenture,
the guarantee of each Guarantor endorsed thereon will constitute
valid and legally binding obligations of such Guarantor,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles
(regardless of whether such enforcement is considered in a
proceeding at law or in equity).
(i) Except as
disclosed in the General Disclosure Package, there are no
contracts, agreements or understandings between the Issuer and any
person granting such person the right to require Holdings or the
Issuer to file a registration statement under the Securities Act
with respect to any securities of the Issuer or to require the
Issuer to include such securities with the Securities registered
pursuant to any Registration Statement.
(j) On the Closing
Date, the Indenture, (including the Supplemental Indenture, to the
extent applicable), will conform in all material respects to the
requirements of the United States Trust Indenture Act of 1939, as
amended (the “ Trust Indenture Act ”), and the
rules and regulations of the Commission applicable to an indenture
which is qualified thereunder.
(k) Except as
otherwise disclosed in the General Disclosure Package, there are no
contracts, agreements or understandings between the Issuer or any
of its subsidiaries and any person (other than the Purchasers) that
would give rise to a valid claim against the Issuer or any of its
subsidiaries or the Purchasers for a brokerage commission,
finder’s fee or other like payment in connection with the
transactions contemplated by this Agreement.
(l) Except as set
forth in the General Disclosure Package and assuming the accuracy
of, and compliance with, the representations, warranties and
agreements of the Purchasers under Section 4 of this
Agreement, no consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is
required for the consummation of the transactions contemplated by
this Agreement and the Registration Rights Agreement in connection
with the issuance and sale of the Offered Securities by the Issuer
except for the order (and filings to obtain such order) of the
Commission declaring the Exchange Offer Registration Statement or
the Shelf Registration Statement effective
6
and except as
may be required under the securities or Blue Sky laws of the
various states and foreign jurisdictions.
(m) Assuming the
accuracy of, and compliance with, the representations, warranties
and agreements of the Purchasers under Section 4 of this
Agreement and the compliance by the holders of the Offered
Securities with the offering and transfer restrictions set forth in
the Final Offering Circular and upon the consummation of the
offering of the Offered Securities as described in the Final
Offering Circular, the execution, delivery and performance of the
Operative Documents, the Guarantees and the issuance and sale of
the Offered Securities and compliance with the terms and provisions
thereof by the Issuer, Holdings and the Subsidiary Guarantors, as
appropriate, will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under,
(i) any statute, rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having
jurisdiction over the Issuer or any subsidiary of the Issuer or any
of their properties, or (ii) any agreement or instrument to which
the Issuer or any such subsidiary is a party or by which the Issuer
or any such subsidiary is bound or to which any of the properties
of the Issuer or any such subsidiary is subject, or (iii) the
charter or by-laws of the Issuer or any such subsidiary, except
for, in the case of clause (i) and (ii) hereof, any
breach, violation or default that, singly or in the aggregate,
would not result in a Material Adverse Effect; and the Issuer,
Holdings and the Subsidiary Guarantors have the necessary corporate
power and authority to authorize, issue and sell the Offered
Securities and the Guarantees thereof, respectively, as
contemplated by this Agreement.
(n) This Agreement
has been duly authorized, executed and delivered by the Issuer,
Holdings and the Subsidiary Guarantors. On the Closing Date, the
Purchase Agreement Counterparts will be duly authorized, executed
and delivered by the Ryan’s Guarantors.
(o) Except as
disclosed in the General Disclosure Package, the Issuer and its
subsidiaries have good and marketable title to material properties
and all other material real properties and assets owned by them, in
each case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with
the use made or proposed to be made thereof by them; and except as
disclosed in the General Disclosure Package, the Issuer and its
subsidiaries hold any material leased real or personal property
under valid and enforceable leases with no exceptions that would
materially interfere with the use made or proposed to be made
thereof by them.
7
(p) The Issuer and
its subsidiaries possess adequate certificates, authorities or
permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that
individually or in the aggregate would reasonably be expected to
have a Material Adverse Effect.
(q) No labor
dispute with the employees of the Issuer or any subsidiary exists
or, to the knowledge of the Issuer, is imminent that would
reasonably be expected to have a Material Adverse
Effect.
(r) The Issuer and
its subsidiaries own, possess or can acquire on reasonable terms,
adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other
intellectual property (collectively, “ intellectual
property rights ”) necessary to conduct the business now
operated by them, or presently employed by them, and have not
received any notice of infringement of or conflict with asserted
rights of others with respect to any intellectual property rights
that would individually or in the aggregate have a Material Adverse
Effect.
(s) Except as
disclosed in the General Disclosure Package, to the knowledge of
the Issuer, neither Holdings nor any of its subsidiaries is in
violation of any statute, any rule, regulation, decision or order
of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or
toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, “ environmental laws ”), owns or
operates any real property contaminated with any substance that is
subject to any environmental laws, is liable for any off-site
disposal or contamination pursuant to any environmental laws, or is
subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or
in the aggregate have a Material Adverse Effect; and the Issuer is
not aware of any pending investigation which would reasonably be
expected to lead to such a claim.
(t) Except as
disclosed in the General Disclosure Package, there are no pending
actions, suits or proceedings against or affecting Holdings, any of
its subsidiaries or any of their respective properties that
individually or in the aggregate would reasonably be expected to
have a Material Adverse Effect, or would materially and adversely
affect the ability of the Issuer, Holdings or any Subsidiary
Guarantor, as appropriate, to perform its obligations under
the
8
Operative
Documents, or which are otherwise material in the context of the
sale of the Offered Securities; and no such actions, suits or
proceedings are threatened or, to the Issuer’s knowledge,
contemplated which may reasonably be expected to have a Material
Adverse Effect.
(u) The
consolidated financial statements included in the General
Disclosure Package present fairly the financial position of
Holdings and its consolidated subsidiaries and as of the dates
shown and their results of operations and cash flows for the
periods shown, and, except as otherwise disclosed in the General
Disclosure Package, such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis; and the assumptions
used in preparing the pro forma financial statements included in
the General Disclosure Package provide a reasonable basis for
presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect in all material respects to
those assumptions and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding
historical financial statement amounts.
(v) Except as
disclosed in the General Disclosure Package, since the date of the
latest audited financial statements included in the General
Disclosure Package there has been no material adverse change, nor
any development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties
or results of operations of Holdings and its subsidiaries taken as
a whole, and, except as disclosed in or contemplated by the General
Disclosure Package, there has been no dividend or distribution of
any kind declared, paid or made by Holdings on any class of its
capital stock.
(w) Neither the
Issuer, Holdings nor any of the Subsidiary Guarantors 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 Issuer Act of 1940
(the “ Investment Company Act ”); and the Issuer
is not, after giving effect to the offering and sale of the Offered
Securities and the application of the proceeds thereof as described
in the General Disclosure Package, an “investment
company” as defined in the Investment Company Act.
(x) No securities
of the same class (within the meaning of Rule 144A(d)(3) under the
Securities Act) as the Offered Securities are listed on any
national securities exchange registered under
9
Section 6
of the United States Securities Exchange Act of 1934 (“
Exchange Act ”) or quoted in a U.S. automated
inter-dealer quotation system.
(y) Assuming the
accuracy of, and compliance with, the representations, warranties
and agreements of the Purchasers in Section 4 of this
Agreement and the compliance by the holders of the Offered
Securities with the offering and transfer restrictions set forth in
the Final Offering Circular, the offer and sale of the Offered
Securities in the manner contemplated by this Agreement will be
exempt from the registration requirements of the Securities Act;
and it is not necessary to qualify an indenture in respect of the
Offered Securities under the Trust Indenture Act.
(z) Neither the
Issuer, nor any of its affiliates, nor any person acting on its or
their behalf (other than the Purchasers, as to whom the Issuer
makes no representation) (i) has, within the six-month period
prior to the date hereof, offered or sold in the United States or
to any U.S. person (as such terms are defined in Regulation S
under the Securities Act) the Offered Securities or any security of
the same class or series as the Offered Securities or (ii) has
offered or will offer or sell the Offered Securities (A) in
the United States by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the
Securities Act or (B) with respect to any such securities sold
in reliance on Rule 903 of Regulation S under the
Securities Act, by means of any directed selling efforts within the
meaning of Rule 902(c) of Regulation S. The Issuer, its affiliates
and any person acting on its or their behalf (other than the
Purchasers, as to whom the Issuer makes no representation) have
complied and will comply with the offering restrictions requirement
of Regulation S. The Issuer has not entered and will not enter
into any contractual arrangement with respect to the distribution
of the Offered Securities except for this Agreement.
(aa) Neither the
Issuer nor any of its subsidiaries is (i) in violation of its
respective charter, by-laws or similar organizational documents or
(ii) in default in the performance of any obligation,
agreement, covenant or condition contained in any indentures, loan
agreement, mortgage, lease or other agreement or instrument that is
material to the Issuer or its subsidiaries, as a whole, to which
the Issuer or any or its subsidiaries, is a party or by which the
Issuer or any of its subsidiaries or their respective properties
are bound except in the case of clause (ii), when such default
would not individually or in the aggregate, have a Material Adverse
Effect.
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(bb) The sale of
the Offered Securities pursuant to Regulation S is not part of
a plan or scheme to evade the registration process of the
Securities Act.
(cc) Neither the
Issuer nor any of its subsidiaries nor any agent thereof acting on
the behalf of them has taken, and none of them will take, any
action that might cause this Agreement or the issuance or sale of
the Offered Securities to violate Regulation T,
Regulation U or Regulation X of the Board of Governors of
the Federal Reserve System.
(dd) The
Registration Rights Agreement has been duly authorized by the
Issuer, Holdings and the Subsidiary Guarantors and, on the Closing
Date, will have been duly executed and delivered by the Issuer and
the Guarantors. When the Registration Rights Agreement has been
duly executed and delivered, the Registration Rights Agreement will
be a valid and binding agreement of the Issuer and the Guarantors,
enforceable against the Issuer and the Guarantors in accordance
with its terms, subject to (i) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights, (ii) to general equity principles and the discretion
of the court before which any proceeding therefor must be brought
and (iii) as to rights of indemnification and contributions by
principles of public policy or Federal and state securities laws
relating thereto. On the Closing Date, the Registration Rights
Agreement will conform in all material respects to the description
thereof in the General Disclosure Package and in the Final Offering
Circular.
(ee) No
“nationally recognized statistical rating organization”
as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act (i) has imposed (or has informed the Issuer
that it is considering imposing) any condition (financial or
otherwise) on the Issuer’s retaining any rating assigned to
the Issuer, any securities of the Issuer or (ii) has indicated
to the Issuer 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 Issuer or any securities of the Issuer.
(ff) Holdings
maintains disclosure controls and procedures (as defined as
Rule 13a-15(e) of the Exchange Act) designed to ensure that
information required to be disclosed by Holdings in the reports
that it files or submits under the Exchange Act is recorded,
processed, summarized and reported in accordance with
the
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Exchange Act
and the rules and regulations thereunder. Holdings has carried out
and will carry out evaluations, under the supervision and with the
participation of the management of Holdings and the Issuer, of the
effectiveness of the design and operation of the Issuer’s
disclosure controls and procedures in accordance with
Rule 13a-15 of the Exchange Act.
(gg) The Issuer
and each of its subsidiaries makes and keeps accurate books and
records and maintains a system of internal accounting controls
sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorization;
(ii) with GAAP and to maintain asset accountability;
(iii) access 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 differences. The Issuer is not aware
of any material weaknesses in its or its subsidiaries’
internal controls.
3.
Purchase, Sale and Delivery of Offered Securities. On the
basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set
forth, the Issuer agrees to sell to the Purchasers, and the
Purchasers agree, severally and not jointly, to purchase from the
Issuer, at a purchase price of 97.25% of the principal amount
thereof plus accrued interest, if any, from November 1, 2006
to the Closing Date, the principal amount of Offered Securities set
forth opposite the names of the several Purchasers in
Schedule A hereto.
The Issuer will
deliver against payment of the purchase price the Offered
Securities to be offered and sold by the Purchasers in reliance on
Regulation S (the “ Regulation S Securities
”) in the form of one or more permanent global Securities in
registered form without interest coupons (the “
Regulation S Global Securities ”) which will be
deposited with the Trustee as custodian for The Depository Trust
Company (“ DTC ”) and registered in the name of
Cede & Co., as nominee for DTC. The Issuer will deliver against
payment of the purchase price the Offered Securities to be
purchased by each Purchaser hereunder and to be offered and sold by
each Purchaser in reliance on Rule 144A under the Securities
Act (the “ 144A Securities ”) in the form of one
permanent global security in definitive form without interest
coupons (the “ Restricted Global Securities ”)
deposited with the Trustee as custodian for DTC and registered in
the name of Cede & Co., as nominee for DTC. The
Regulation S Global Securities and the Restricted Global
Securities shall be assigned separate CUSIP numbers. The Restricted
Global Securities shall include the legend regarding restrictions
on transfer set forth under “Transfer Restrictions” in
the Final Offering Circular. Interests in any permanent global
securities will be held only in book-entry form through DTC, except
in the limited circumstances described in the Final Offering
Circular.
Payment for the
Regulation S Securities and the 144A Securities shall be made
by the Purchasers in Federal (same day) funds by wire transfer to
an account of the Issuer or
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an account as
the Issuer may direct at a bank acceptable to Purchasers, at the
office of Paul, Weiss, Rifkind, Wharton & Garrison LLP at 9:00
a.m. (New York time) on November 1, 2006, or at such other
time not later than seven full business days thereafter as
Purchasers and the Issuer determine, such time being herein
referred to as the “ Closing Date, ” against
delivery to the Trustee as custodian for DTC of (i) the
Regulation S Global Securities representing all of the
Regulation S Securities and (ii) the Restricted Global
Securities representing all of the 144A Securities. The
Regulation S Global Securities and the Restricted Global
Securities will be made available for checking at the office of
Paul, Weiss, Rifkind, Wharton & Garrison LLP at least 24 hours
prior to the Closing Date.
4.
Representations by Purchasers; Resale by Purchasers
.
(a) Each Purchaser
severally represents and warrants to the Issuer that it is an
“accredited investor” within the meaning of
Regulation D under the Securities Act.
(b) Each Purchaser
severally acknowledges that the Offered Securities have not been
registered under the Securities Act and may not be offered or sold
within the United States or to, or for the account or benefit of,
U.S. persons except in accordance with Regulation S or
pursuant to an exemption from the registration requirements of the
Securities Act. Each Purchaser severally represents and agrees that
it has offered and sold the Offered Securities and will offer and
sell the Offered Securities only in accordance with Rule 903
or Rule 144A (“ Rule 144A ”) under the
Securities Act. Accordingly, neither such Purchaser nor its
affiliates, nor any persons acting on its or their behalf, have
engaged or will engage in any directed selling efforts with respect
to the Offered Securities, and such Purchaser, its affiliates and
all persons acting on its or their behalf have complied and will
comply with the offering restrictions requirement of
Regulation S and Rule 144A. Each Purchaser severally
represents and agrees that, at or prior to confirmation of sale of
the Offered Securities, other than a sale pursuant to
Rule 144A, such Purchaser will have sent to each distributor,
dealer or person receiving a selling concession, fee or other
remuneration that purchases the Offered Securities from it during
the restricted period a confirmation or notice to substantially the
following effect:
“The
Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the “Securities Act”) and may
not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the date of the commencement of the offering and the
closing date, except in either case in accordance with
Regulation S (or Rule 144A if
13
available)
under the Securities Act. Terms used above have the meanings given
to them by Regulation S.”
Terms used in
this subsection (b) have the meanings given to them by
Regulation S.
(c) Each Purchaser
severally represents and agrees that it and each of its affiliates
has not entered and will not enter into any contractual arrangement
with respect to the distribution of the Offered Securities except
for any such arrangements with the other Purchasers or affiliates
of the other Purchasers or with the prior written consent of the
Issuer.
(d) Each Purchaser
severally represents and agrees that it and each of its affiliates
will not offer or sell the Offered Securities by means of any form
of general solicitation or general advertising, within the meaning
of Rule 502(c) under the Securities Act, including, but not limited
to (i) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media
or broadcast over television or radio, or (ii) any seminar or
meeting whose attendees have been invited by any general
solicitation or general advertising. Each Purchaser severally
represents and agrees, with respect to resales made in reliance on
Rule 144A of any of the Offered Securities, to deliver either
with the confirmation of such resale or otherwise prior to
settlement of such resale a notice to the effect that the resale of
such Offered Securities has been made in reliance upon the
exemption from the registration requirements of the Securities Act
provided by Rule 144A.
(e) Each Purchaser
severally represents and agrees that (i) it has not offered or
sold and prior to the expiry of a period of six months from the
Closing Date, will not offer or sell any Offered Securities to
persons in the United Kingdom except to persons whose ordinary
activities involve them acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted
and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities
Regulation 1995; (ii) it has only communicated or caused
to be communicated and will only communicate or cause to be
communicated any invitation or inducement to engage in investment
activity (within the meaning of section 21 of the Financial
Services and Markets Act 2000 (the “ FSMA ”))
received by it in connection with the issue or sale of any Offered
Securities in circumstances in which section 21(1) of the FSMA does
not apply to the Issuer; and (iii) it has complied and will
comply with all applicable provisions
14
of the FSMA
with respect to anything done by it in relation to the Offered
Securities in, from or otherwise involving the United
Kingdom.
5.
Certain Agreements of the Issuer. The Issuer agrees with the
several Purchasers that:
(a) The Issuer
will advise Credit Suisse promptly of any proposal to amend or
supplement the Preliminary or Final Offering Circular and will not
effect such amendment or supplementation without Credit
Suisse’s consent, which consent shall not be unreasonably
withheld. If, at any time prior to the completion of the resale of
the Offered Securities by the Purchasers, any event occurs as a
result of which any document included in the Preliminary or Final
Offering Circular, the General Disclosure Package or any
Supplemental Marketing Material included or would include an untrue
statement of a material fact or omitted or would omit to state any
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading or if it is necessary at any time to amend or supplement
the Preliminary or Final Offering Circular, the General Disclosure
Package or any Supplemental Marketing Material to comply with any
applicable law, the Issuer will promptly notify Credit Suisse of
such event and will promptly prepare, at its own expense, an
amendment or supplement which will correct such statement or
omission. Neither Credit Suisse’s consent to, nor the
Purchasers’ delivery to offerees or investors of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 7. The second sentence of this
subsection does not apply to statements in or omissions from any
document in the Preliminary or Final Offering Circular, the General
Disclosure Package or any Supplemental Marketing Material made in
reliance upon and in conformity with written information furnished
to the Issuer by Purchasers specifically for use therein, it being
understood and agreed that the only such information is that
described in Section 8(b) hereof.
(b) The Issuer
will furnish to the Purchasers copies of the Preliminary Offering
Circular, each other document comprising a part of the General
Disclosure Package, the Final Offering Circular, all amendments and
supplements to such documents and each item of Supplemental
Marketing Material, in each case as soon as available and in such
quantities as Credit Suisse reasonably re
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