<PAGE>
EXHIBIT 10.2
FORM OF PURCHASE AGREEMENT
$__________ AGGREGATE PRINCIPAL AMOUNT
INTERSTATE BAKERIES CORPORATION
6% SENIOR SUBORDINATED CONVERTIBLE NOTES DUE 2014
PURCHASE AGREEMENT
August 11, 2004
[NAME]
[ADDRESS]
[CITY, STATE ZIP]
Ladies and Gentlemen:
Interstate Bakeries Corporation, a Delaware corporation (the
"COMPANY"), has authorized the issuance and
sale of up to $120,000,000 principal
amount of its 6% Senior Subordinated
Convertible Notes due 2014 (the "NOTES").
The Company proposes, subject to the terms
and conditions stated herein, to
issue and sell on the Closing Date (as
defined in Section 1 below) $__________
principal amount of the Notes (the "FIRM
SECURITIES") to ________ (the
"PURCHASER"). The Company also proposes to
issue and sell to the Purchaser up to
an additional $__________ principal amount
of the Notes (the "ADDITIONAL
SECURITIES" and, together with the Firm
Securities, the "SECURITIES") if and to
the extent that the Purchaser shall have
determined to exercise the right to
purchase such Additional Securities granted
to the Purchaser in Section 1
hereof. The Notes will be issued pursuant
to an indenture (the "INDENTURE")
dated as of the Closing Date (as defined
below) among the Company, the Guarantor
parties thereto and U.S. Bank National
Association, as Trustee (the "TRUSTEE").
The Notes will be convertible into shares
(the "UNDERLYING SECURITIES") of
common stock of the Company, par value $.01
per share (the "COMMON STOCK") on
the terms, and subject to the conditions,
set forth in the Indenture.
Concurrently with the issuance and sale of
Securities contemplated by this
Agreement, the Company intends to issue and
sell to certain other purchasers
(the "ADDITIONAL PURCHASERS"), on terms and
conditions that are identical to
those applicable to the sale of the Firm
Securities herein, an additional
$_______ aggregate principal amount of the
Notes. In connection with such sales,
the Company will grant to each such
Additional Purchaser the right to purchase,
on terms and conditions that are identical
to those applicable to the sale of
the Additional Securities herein, up to an
aggregate principal amount of Notes
equal to 20% of the aggregate principal
amount of the Notes initially purchased
by such Additional Purchaser.
<PAGE>
The Company's obligations under the Notes, other than its
obligations
in respect of conversion of the Notes and
the issuance of the Underlying
Securities thereupon, will be guaranteed
(the "PAYMENT GUARANTEES") by each of
the Company's subsidiaries listed on
Schedule I hereto and any future domestic
guarantors party to the Indenture (each, a
"GUARANTOR" and, collectively, the
"GUARANTORS").
The Notes, the Payment Guarantees and the Underlying Securities
will be
offered without being registered under the
Securities Act of 1933, as amended
(together with the rules and regulations
promulgated thereunder, the "SECURITIES
ACT"), in reliance on an exemption
therefrom.
The Purchaser will be entitled to the benefits of a Registration
Rights
Agreement covering the Underlying
Securities dated as of the Closing Date among
the Company, the Purchaser and the
Additional Purchasers (the "REGISTRATION
RIGHTS AGREEMENT").
This Agreement, the Indenture, the Notes, the Payment Guarantees
and
the Registration Rights Agreement are
referred to herein collectively as the
"TRANSACTION DOCUMENTS".
The Company hereby agrees with the Purchaser as follows:
1.
Agreements to Sell and Purchase. The Company agrees to issue
and sell the Firm Securities to the
Purchaser as hereinafter provided, and the
Purchaser, upon the basis of the
representations and warranties herein
contained, but subject to the conditions
hereinafter stated, agrees to purchase
from the Company the Firm Securities at a
purchase price of 100% of the
principal amount thereof (the "PURCHASE
PRICE").
On the basis of the representations and warranties contained in
this
Agreement, and subject to its terms and
conditions, the Company agrees to sell
to the Purchaser the Additional Securities,
and the Purchaser shall have the
right to purchase in whole, and not in
part, the Additional Securities at the
Purchase Price plus accrued interest, if
any, from the Closing Date to the date
of payment and delivery (the "OPTION"). If
the Purchaser exercises the Option,
the Purchaser shall so notify the Company
in writing (the "OPTION EXERCISE
NOTICE") not later than the end of the
Exercise Period (as hereinafter defined),
which Option Exercise Notice shall specify
the date on which the Additional
Securities are to be purchased. Such date
may be the same as the Closing Date
but not earlier than the Closing Date nor
later than five business days after
the date of such Option Exercise Notice.
For purposes of this paragraph, the
"EXERCISE PERIOD" means the period
beginning on the date hereof and ending on
October 10, 2004 (the "INITIAL EXPIRATION
DATE"), as extended pursuant to the
next succeeding sentence. If (x) at the
time that the Holder delivers the Option
Exercise Notice, if such Option Exercise
Notice is delivered prior to October 5,
2004, (the "THRESHOLD DATE"), or (y) from
and after the Threshold Date and prior
to the Initial Expiration
2
<PAGE>
Date, a pending corporate development
occurs or exists with respect to the
Company that would cause the Company to
deliver a Suspension Notice (as defined
in the Registration Rights Agreement)
pursuant to the terms of the Registration
Rights Agreement if the Registration
Statement (as defined in the Registration
Rights Agreement) were effective at such
time, then the Company shall deliver to
the Purchaser (i) a written notice
indicating that the Exercise Period is
suspended, that the Option Exercise Notice,
if any, is void as if never
delivered by the Purchaser and that the
Purchaser shall not be entitled to
exercise the Option until the Company has
delivered the notice set forth in the
following clause (ii) and (ii) upon
termination of such suspension, a written
notice indicating that the Exercise Period
has been resumed and the new
termination date of the Exercise Period,
which shall coincide with the number of
days the Exercise Period was suspended plus
one business day.
The Company hereby agrees that, without the prior written consent
of
the Holders of more than 50% of the
aggregate principal amount of the Securities
at the time outstanding (the "MAJORITY
HOLDERS"), it will not, (x) during the
period ending 90 days after the date of
this Agreement, (i) offer, pledge, sell,
contract to sell, sell any option or
contract to purchase, purchase any option
or contract to sell, grant any option,
right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly
or indirectly, any shares of Common
Stock or any securities convertible into or
exercisable or exchangeable for
Common Stock, (ii) enter into any swap or
other arrangement that transfers to
another, in whole or in part, any of the
economic consequences of ownership of
the Common Stock, and (y) during the period
ending on the later of 90 days after
the date of this Agreement and the date the
registration statement required
under the Registration Rights Agreement is
declared effective, file with the
Securities and Exchange Commission (the
"COMMISSION") a registration statement
under the Securities Act relating to any
additional shares of its Common Stock
or securities convertible into, or
exchangeable for, any shares of its Common
Stock, whether any such transaction
described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or
such other securities, in cash or
otherwise. The foregoing sentence shall not
apply to (A) the sale of the
Securities under this Agreement or the
issuance of the Underlying Securities,
(B) the grant by the Company of employee,
director or consultant stock options,
(C) the grant or issuance by the Company of
Common Stock options or warrants to
as full or partial payment of a customary
advisory fee payable to a nationally
recognized financial institution in
connection with a strategic transaction or
financing, (D) the grant of warrants
exercisable solely for cash at a premium to
the then current market price of the Common
Stock, which warrants are not a
principal component of an asset based
financing with a national recognized
commercial banking institution making asset
based loans in the ordinary course
of its business, (E) the issuance by the
Company of any shares of Common Stock
upon the exercise of an option or warrant
or the conversion of a security
outstanding on the date hereof (provided
that the terms of such options or
warrants are not amended or modified in any
manner after the date hereof) or an
option or warrant issued or granted in
compliance with this paragraph, and (F)
the
3
<PAGE>
filing of any registration statement in
respect of the Underlying Securities
(the "EXCLUSIONS").
In addition, the Company agrees to use its best efforts to prevent
its
executive officers and directors, in the
aggregate, from taking any of the
actions set forth in clauses (i) and (ii)
in the immediately preceding paragraph
with respect to in excess of 250,000 shares
of Common Stock without the prior
written consent of the Majority
Holders.
2.
Closing. Payment for the Firm Securities shall be made by the
Purchaser to the Company to an account
specified in writing by the Company to
the Purchaser in Federal or other funds
immediately available in New York City
against delivery to the Purchaser of such
Firm Securities in the form specified
by the Purchaser at 10:00 a.m., New York
City time, on August 12, 2004, or at
such other time on the same or such other
date, as shall be mutually agreed upon
by the Company and the Purchaser. The time
and date of such payment and delivery
are hereinafter referred to as the "CLOSING
DATE."
Payments for the Additional Securities purchased pursuant to the
option
granted to the Purchaser in Section 1 above
shall be made by the Purchaser to
the Company to an account specified in
writing by the Company to the Purchaser
in Federal or other funds immediately
available in New York City against
delivery of such Additional Securities in
the form specified by the Purchaser to
the Purchaser at 10:00 a.m., New York City
time, on the date specified in the
notice described in Section 1 or at such
other time on the same or on such other
date, in any event not later than October
12, 2004, as shall be mutually agreed
upon by the Company and the Purchaser. The
time and date of each such payment
and delivery are hereinafter referred to as
an "OPTION CLOSING DATE."
3.
Representations and Warranties. The Company and each
Guarantor, jointly and severally,
represents and warrants to the Purchaser that:
(a) the
documents filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as
amended,
and the rules and regulations of the Commission thereunder
(collectively, the "EXCHANGE ACT") since May 31, 2003, when
such
documents (as amended or supplemented from time to time prior to
the
date hereof, including the exhibits thereto, the "EXCHANGE ACT
DOCUMENTS") were filed with the Commission, (i) conformed in
all
material respects to the requirements of the Exchange Act and (ii)
did
not contain an 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,
in each case, for the effect, if any, of the matters discussed
or
referenced in the Company's Current Reports on Form 8-K filed with
the
Commission on June 3, 2004, July 9, 2004, July 29, 2004, August
10,
2004 and the 8-K related solely to the press
4
<PAGE>
release issued by the Company at 7:30 a.m. on August 11, 2004
(the
"LATEST 8-KS");
(b) (i) the
financial statements included in the Exchange
Act Documents present fairly, in all material respects, the
consolidated financial position of the Company and its
consolidated
subsidiaries as of the dates indicated and the results of their
operations and the changes in their consolidated cash flows for
the
periods specified, (ii) said financial statements have been
prepared in
conformity with generally accepted accounting principles and
practices
("GAAP") applied on a consistent basis; (iii) the supporting
schedules,
if any, in the Exchange Act Documents present fairly the
information
required to be stated therein, (iv) the other financial and
statistical
information and any other financial data set forth in the Exchange
Act
Documents present fairly, in all material respects, the
information
purported to be shown thereby at the respective dates or for
the
respective periods to which they apply and (v) to the extent that
such
information is set forth in or has been derived from the
financial
statements and accounting books and records of the Company, have
been
prepared on a basis consistent with such financial statements and
the
books and records of the Company; except, in each case, for the
effect,
if any, of the matters discussed or referenced in the Latest
8-Ks;
(c) since the
Company's Quarterly Report on Form 10-Q
filed with the Commission on April 19, 2004 (the "LATEST 10-Q"),
there
has not been any Material Adverse Change affecting the Company or
the
Significant Subsidiaries which has not been publicly disclosed by
the
Company;
(i) as used in this agreement, "MATERIAL ADVERSE
CHANGE" or "MATERIAL ADVERSE EFFECT" means any change or effect
that
would be materially adverse to the business, properties,
financial
condition or results of operations of the Company and its
subsidiaries
which are "significant subsidiaries" within the meaning of
Regulation
S-X promulgated under the Securities Act (each, a "SIGNIFICANT
SUBSIDIARY" and collectively, the "SIGNIFICANT SUBSIDIARIES"),
taken as
a whole, or to the ability of the Company or any Guarantor to
consummate the transactions contemplated hereby and by the
other
Transaction Documents; provided, that none of the following shall
be
deemed to constitute, and none of the following shall be taken
into
account in determining whether there has been, a Material
Adverse
Effect or Material Adverse Change: any adverse change, event,
development, or effect arising from or relating directly or
indirectly
to (1) any of the matters discussed or referenced in the Latest
8-Ks,
(2) the second, third and fourth and fifth amendments
(collectively,
the "BANK AMENDMENTS") of the Company's Amended and Restated
Credit
Agreement, dated as of April 25, 2002 (as amended, supplemented
or
otherwise modified from time to
5
<PAGE>
time, the "CREDIT AGREEMENT"), true, correct and complete copies
of
which will be
provided to the Purchaser, or (3) any downgrade in the
Company's general credit rating or the rating of any indebtedness
of
the Company or any change in outlook in respect of any such
indebtedness by either Standard & Poor's Rating Services or
Moody's
Investors Service, or by any other national or regional rating
agency
(the matters set forth in (2) and (3) above, collectively, the
"CREDIT-RELATED EVENTS").
(d) since the
Latest 10-Q, there has not been any (i)
change in the capital stock or long-term debt of the Company or
any
Guarantor, (ii) issuance of any options, warrants, convertible
securities or rights to purchase capital stock of the Company or
any
Guarantor, except for changes occurring in the ordinary course
of
business, changes in outstanding Common Stock resulting from
transactions relating to employee benefit plans or dividend
reinvestment, stock option, stock award and stock purchase plans
and
for any other changes any of the foregoing of which do not,
individually or in the aggregate, constitute a Material Adverse
Change;
(e) since the
Latest 10-Q, neither the Company nor any
Guarantor has entered into any transaction or agreement that has
or
would be reasonably likely to have a Material Adverse Effect on
the
Company and its Subsidiaries, taken as a whole;
(f)
since the
Latest 10-Q, the Company has not declared
or paid any dividends or made any distribution of any kind with
respect
to its capital stock;
(g) the
Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
its
jurisdiction of incorporation, with corporate power and authority
to
own or lease its properties and conduct its business as described
in
the Exchange Act Documents, and has been duly qualified as a
foreign
corporation for the transaction of business and is in good
standing
under the laws of each other jurisdiction in which it owns or
leases
properties, or conducts its business in a manner or to an extent
that
would require such qualification, other than such failures to be
so
qualified or in good standing as, individually or in the
aggregate,
would not reasonably be expected to have a Material Adverse
Effect;
(h) each of
the Guarantors has been duly incorporated or
formed and is validly existing as a corporation or limited
liability
company under the laws of its jurisdiction of incorporation or
formation, with corporate or limited liability company power
and
authority to own or lease its properties and conduct its business
as
described in the Exchange Act Documents, and has been duly
qualified as
a foreign corporation for the transaction of business and is in
good
standing under the laws of each
6
<PAGE>
jurisdiction in which it owns or leases properties or conducts
its
business in a manner or to an extent that would require such
qualification, other than such failures to be so qualified or in
good
standing as, individually or in the aggregate, would not reasonably
be
expected to have a Material Adverse Effect; and all the
outstanding
shares of capital stock or limited liability company interests of
each
Guarantor have been duly authorized and validly issued, are
fully-paid
and non-assessable, and, except as set forth in the Exchange
Act
Documents, are owned by the Company, directly or indirectly, free
and
clear of all claims, liens, encumbrances, security interests,
restrictions upon voting or transfer and adverse interests and
no
options, warrants or other rights to purchase, agreements or
other
obligations to issue, or rights to convert any obligations into
or
exchange any securities for, shares of capital stock of, or
ownership
interests in, any such Guarantor are outstanding;
(i) the
Company and each Guarantor has full corporate or
limited liability company power and authority to enter into the
Transaction Documents to which it is a party and to perform and
discharge its obligations thereunder; each Transaction Document
to
which it is a party has been duly authorized, executed and
delivered by
the Company and each Guarantor and constitutes the legal, valid
and
binding obligations of the Company and each Guarantor,
enforceable
against each of them in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors'
rights
and remedies generally, and subject, as to enforceability, to
general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of
whether
enforcement is sought in a proceeding at law or in equity);
(j)
immediately prior to the transactions contemplated
hereby, the authorized, issued and outstanding capital stock of
the
Company is as set forth in the Latest 10-Q except for changes
occurring
in the ordinary course of business, changes in outstanding Common
Stock
resulting from transactions relating to employee benefit plans
or
dividend reinvestment, stock option, stock award and stock
purchase
plans and for any other changes any of the foregoing of which do
not,
individually or in the aggregate, constitute a Material Adverse
Change;
except for this Agreement and the Registration Rights Agreement
or
stock purchase plans, there are no contracts, commitments,
agreements,
arrangements, understandings or undertakings of any kind to which
the
Company is a party, or by which it is bound, granting to any person
the
right to require the Company to file a registration statement under
the
Securities Act with respect to the Common Stock or requiring
the
Company to include any Common Stock with the Underlying
Securities
registered pursuant to any registration statement;
7
<PAGE>
(k) the shares
of Common Stock outstanding on the date
hereof have been duly authorized and are validly issued, fully paid
and
non-assessable;
(l) the
Securities have been duly authorized by the
Company, and when duly executed, authenticated, issued and
delivered as
provided in the Indenture (assuming due authentication of the
Securities by the Trustee) and paid for as provided herein will
constitute the legal, valid and binding obligations of the
Company,
enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors'
rights
and remedies generally, and subject, as to enforceability, to
general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of
whether
enforcement is sought in a proceeding at law or in equity);
(m) the
Indenture has been duly authorized by the Company
and each Guarantor, and when executed and delivered by the Company
and
each Guarantor (assuming the authorization, execution and delivery
by
the Trustee) will be a legal, valid and binding instrument of
the
Company and each Guarantor, enforceable against each of them in
accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
and
similar laws affecting creditors' rights and remedies generally,
and
subject, as to enforceability, to general principles of equity,
including principles of commercial reasonableness, good faith and
fair
dealing (regardless of whether enforcement is sought in a
proceeding at
law or in equity);
(n) upon
issuance and delivery of the Securities in
accordance with the Agreement and the Indenture, the Securities
will be
convertible at the option of the holder thereof into shares of
the
Underlying Securities in accordance the terms of the Indenture;
the
Underlying Securities reserved for issuance upon conversion of
the
Securities have been duly authorized and reserved and, when issued
upon
conversion of the Securities in accordance with the terms of
the
Indenture, will be validly issued, fully paid and non-assessable,
and
the issuance of the Underlying Securities will not be subject to
any
preemptive or similar rights;
(o) the
Registration Rights Agreement has been duly
authorized by the Company and when executed and delivered by
the
Company (assuming the due authorization, execution and delivery
thereof
by the Purchaser and the Additional Purchasers) shall constitute
the
legal, valid and binding obligation of the Company, enforceable
against
it in accordance with its terms, subject to applicable
bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium
and
similar laws affecting creditors' rights and remedies generally,
and
subject, as to
8
<PAGE>
enforceability, to general principles of equity, including
principles
of commercial reasonableness, good faith and fair dealing
(regardless
of whether enforcement is sought in a proceeding at law or in
equity)
and except that rights to indemnification and contribution
thereunder
may be limited by federal or state securities laws or public
policy
relating thereto;
(p) the
Guarantors constitute all of the Subsidiaries of
the Company that are guarantors under the Credit Agreement; and
the
Guarantees of each of the Guarantors have been duly authorized by
all
necessary corporate or limited liability company action, as
applicable,
of each of the Guarantors and, when executed and delivered in
accordance with the terms of the Indenture (assuming the due
execution,
issuance and authentication of the Securities in accordance with
the
terms of the Indenture and delivery and payment therefor by the
Purchaser in accordance with the terms of this Agreement), the
Payment
Guarantees will be the legally valid and binding obligations of
each of
the foregoing Guarantors, enforceable against each of them in
accordance with their terms;
(q) upon
consummation of the transactions contemplated by
this Agreement and the Bank Amendments, neither the Company nor
any
Guarantor
is, or with the giving of notice or lapse of time or both
will be, in violation of or in default under (i) its Certificate
of
Incorporation, Bylaws or other organizational documents, (ii) under
any
indenture, mortgage, deed of trust, loan agreement or other
agreement
or instrument to which the Company or any Guarantor is a party or
by
which it or any of them or any of their respective properties is
bound,
or (iii) any statute, law, rule, regulation, ordinance, judgment,
order
or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction
over the Company, its subsidiaries or any of their respective
properties or assets, as applicable, except, with respect to
clauses
(ii) and (iii), for violations and defaults which, individually or
in
the aggregate, have not or would not reasonably be expected to
result
in a Material Adverse Effect.
(r) the issue
and sale of the Securities and the issuance
by the Company of the Underlying Securities upon conversion of
the
Securities, the Guaranty of the Securities by the Guarantors in
accordance
with the terms of the Indenture, the performance by the
Company and the Guarantors of all their respective obligations
under
the Transaction Documents to which they are party, and the
consummation
of the transactions herein and therein contemplated, will not
(i)
conflict with or result in a breach of any of the terms or
provisions
of, constitute a default (with or without the giving of notice or
the
passage of time or otherwise) under, or result in the creation
or
imposition of any lien, charge or encumbrance upon any property
or
assets of the Company or any
9
<PAGE>
Guarantor under, any indenture, mortgage, deed of trust, loan
agreement
or other agreement or instrument to which the Company or any
Guarantor
is a party or by which the Company or any Guarantor is bound or
to
which any of the property or assets of the Company or any Guarantor
is
subject, except, in each case, for such conflicts, breaches,
defaults,
liens, charges or encumbrances which would not, individually or in
the
aggregate, reasonably be expected to have a Material Adverse
Effect,
(ii) result in any violation of the provisions of the Certificate
of
Incorporation or the Bylaws of the Company or any Guarantor that is
a
corporation or the certificate of formation or limited
liability
agreement of any Guarantor that is a limited liability company,
(iii)
result in any violation of any applicable law or statute or any
order,
rule or regulation of any court or governmental agency or body
having
jurisdiction over the Company, the Guarantors or any of their
respective properties, except for violations which would not,
individually or in the aggregate, have or reasonably be expected
to
have a Material Adverse Effect; and no consent, approval,
authorization, order, license, registration or qualification of or
with
any such court or governmental agency or body is required for the
issue
and sale of the Securities or the consummation by the Company and
the
Guarantors of the transactions contemplated by any of the
Transaction
Documents, except such consents, approvals, authorizations,
orders,
licenses, registrations or qualifications (A) as may be required
under
state securities or Blue Sky Laws in connection with the purchase
of
and any distribution of the Securities, Payment Guarantees or
Underlying Securities by the Purchaser or under the Securities Act
with
respect to the registration of the Securities, Payment Guarantees
and
the Underlying Securities pursuant to the terms of the
Registration
Rights Agreement and (B) the absence of or failure by the Company
or
any Subsidiary to receive would not, individually or in the
aggregate,
reasonably be expected to result in a Material Adverse Effect;
(s) except as
set forth in the Legal Proceedings section
of the Company's Annual Report on Form 10-K for the year ended May
31,
2003 and the Company's Quarterly Report on Form 10-Q for the
quarter
ended March 6, 2004, and the Company's Current Report on Form 8-K
filed
with the Commission on July 29, 2004, there are no legal or
governmental investigations, actions, suits or proceedings pending
or,
to the knowledge of
the Company, threatened against or affecting the
Company or any Guarantor or any of their respective properties or
to
which the Company or any Guarantor is or may be a party or to which
any
property of the Company or any Guarantor is or may be the
subject
which, if determined adversely to the Company or any such
Guarantor,
would, individually or in the aggregate, reasonably be expected to
have
a Material Adverse Effect;
10
<PAGE>
(t) neither
the Company, nor any affiliate (as defined in
Rule 501(b) of Regulation D) of the Company or any person acting on
its
or their behalf, has directly, or through any agent, sold, offered
for
sale, solicited offers to buy or otherwise negotiated in respect
of,
any security (as defined in the Securities Act) which is or will
be
integrated with the sale of the Securities in a manner that
would
require (i) the registration under the Securities Act of the
issuance
of any of the Securities contemplated hereby or (ii) the approval
of
the stockholders of the Company in accordance with the rules
and
regulations of the New York Stock Exchange, Inc. (the "NYSE");
(u) none of
the Company, any affiliate of the Company or
any person acting on its or their behalf has offered or sold any of
the
Securities by means of any general solicitation or general
advertising
within the meaning of Rule 502(c) under the Securities Act;
(v) assuming
the accuracy of the representations of the
Purchaser contained in Section 4 hereof and the Purchaser's
compliance
with the agreements set forth therein, it is not necessary in
connection with the offer, sale and delivery of the Securities in
the
manner contemplated by this Agreement and the other Transaction
Documents to register any of the Securities, Payment Guarantees
or
Underlying Securities under the Securities Act or to qualify
the
Indenture under the Trust Indenture Act of 1939, as amended;
(w) neither
the Company, nor any of its subsidiaries nor
any of their officers or directors or any of their affiliates has
taken
or will take, directly or indirectly, any action designed or
intended
to stabilize or manipulate the price of any security of the
Company, or
which caused or resulted in, or which might in the future
reasonably be
expected to cause or result in, stabilization or manipulation of
the
price of any security of the Company;
(x) the Common
Stock is registered pursuant to Section
12(b) of the Exchange Act and is listed on the NYSE, and the
Company
has not taken any action designed to or reasonably likely to result
in
the termination of the registration of the Common Stock under
the
Exchange Act or delisting of the Common Stock from the NYSE; except
for
any actions directly or indirectly relating to matters discussed in
the
Latest 8-Ks;
(y) the Notes
satisfy the requirements set forth in Rule
144A(d)(3) under the Securities Act;
11
<PAGE>
(z) Deloitte
& Touche LLP, who have certified the
consolidated financial statements of the Company as of May 31,
2003,
are independent public accountants within the meaning of the
Securities
Act;
(aa)
other than as disclosed in, and during the period
covered by, the Exchange Act Documents, the Company and the
Guarantors
have filed all federal, state, local and foreign tax returns which,
to
the Company's knowledge, the Company and the Guarantors have
been
required to file and have paid all taxes shown on the returns filed
by
them and all assessments received by them or any of them to the
extent
that such taxes have become due and are not being contested in
good
faith and for which adequate reserves have been provided, except
where
the failure to do so would not, individually or in the
aggregate,
reasonably be expected to have a Material Adverse Effect; and
except
for potential excise taxes in connection with multi-employer
pension
plans, there is no tax deficiency which has been or, to the
Company's
knowledge, might reasonably be expected to be asserted or
threatened
against the Company or any Guarantor that would reasonably be
expected
to hav
