$190,000,000
TRC FINANCE, INC.
(a Delaware corporation)
10% Senior Notes due 2013
PURCHASE AGREEMENT
September 16, 2005
September 16, 2005
Wachovia Capital Markets, LLC
BNP Paribas Securities Corp.
Jefferies & Company, Inc.
Piper Jaffray & Co.
c/o Wachovia Capital Markets, LLC
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288
Ladies and Gentlemen:
TRC FINANCE, INC., a Delaware corporation ("Finance"), proposes to
issue and sell to the several purchasers named in Schedule I hereto
(the
"Initial Purchasers"), for whom Wachovia Capital Markets, LLC, is
acting as a
Representative (in such capacity, the "Representative"),
$190,000,000 aggregate
principal amount of its 10% Senior Notes due 2013 (the "Notes").
The Notes will
be issued pursuant to an Indenture (the "Indenture") dated as of
the Closing
Date (as defined in Section 2) among Finance, the Company, the
Guarantors (as
defined below) and The Bank of New York, as Trustee (the
"Trustee").
In connection with the consummation of the Transactions (as defined
herein), Finance will merge with and into The Restaurant Company
(the "Company")
(the "Merger"), after which the obligations of Finance under this
Agreement, the
Registration Rights Agreement (as defined herein) and the Indenture
will become
obligations of the Company. The representations, warranties and
agreements of
the Company and the Guarantors under this Agreement shall not
become effective
until consummation of the Merger and execution by the Company and
the Guarantors
of a joinder agreement to this Agreement, the form of which is
attached hereto
as Exhibit A (the "Joinder Agreement"), at which time such
representations,
warranties and agreements shall become effective as of the date
hereof pursuant
to the terms of the Joinder Agreement and each of the Company and
the Guarantors
shall, without any further action by any person, become a party to
this
Agreement. References to the "Issuer" refer to Finance before
consummation of
the Merger and to the Company after consummation of the Merger.
The Notes, upon consummation of the Merger, will be guaranteed (the
"Guarantees") on a senior unsecured basis by each of the Company's
subsidiaries
named in Schedule II hereto (each individually, a "Guarantor" and
collectively
the "Guarantors").
The Notes will have the benefit of a registration rights agreement
(the "Registration Rights Agreement"), to be dated as of the
Closing Date (as
defined below), among Finance, the Company, the Guarantors and the
Initial
Purchasers, pursuant to which Finance and, upon consummation of the
Merger, the
Company and the Guarantors, will agree to register under the Act
and offer to
exchange notes with terms identical to the Notes for the Notes,
subject to the
terms and conditions therein specified.
The Notes and the Guarantees are being offered and sold by Finance
in
connection with the acquisition (the "Acquisition") of The
Restaurant Holding
Corporation ("Parent") pursuant to that certain Stock Purchase
Agreement, dated
as of September 2, 2005, among TRC Holding Corp. ("Holdings"),
Parent and its
current equityholders (together with all schedules and exhibits
thereto, the
"Acquisition Documents"). In connection with the Acquisition, (i)
an investor
group led by Castle Harlan Partners IV, L.P. and certain of its
affiliates and
certain members of management who may choose to roll over all or a
portion of
their equity interests (except that Donald Smith may choose to roll
over up to
$6.5 million of his equity), will make an aggregate investment of
not less than
$65.0 million (the "Equity Contribution") and (ii) the Company will
enter into a
new senior revolving credit facility of up to $25.0 million (the
"Credit
Agreement" and together with all other documents related to such
facility, the
"Credit Documents") with Wachovia Bank, National Association, as
administrative
agent, and the other agents and the lenders party thereto.
This Agreement, the Notes, the Guarantees, the Indenture and the
Registration Rights Agreement are hereinafter sometimes referred to
collectively
as the "Note Documents." The Note Documents, the Acquisition
Documents and the
Credit Documents are hereinafter sometimes referred to collectively
as the
"Transaction Documents." The issuance and sale of the Notes and the
Guarantees,
the Acquisition, the Merger, the Equity Contribution and the
effectiveness of
the Credit Documents and the initial borrowings thereunder are
collectively
referred to as the "Transactions."
The Notes (and the related Guarantees) will be offered and sold
through the Initial Purchasers without being registered under the
Securities Act
of 1933, as amended (the "Securities Act"), to qualified
institutional buyers in
compliance with the exemption from registration provided by Rule
144A under the
Securities Act, and in offshore transactions in reliance on
Regulation S under
the Securities Act ("Regulation S"). The Initial Purchasers have
advised the
Company that they will offer and sell the Notes purchased by them
hereunder in
accordance with Section 3 hereof as soon as the Representative
deems advisable.
In connection with the sale of the Notes, the Company has prepared
a
preliminary offering memorandum, dated September 2, 2005 (the
"Preliminary
Memorandum") and a final offering memorandum, dated the date hereof
(the "Final
Memorandum" and, with the Preliminary Memorandum, each a
"Memorandum"). Each
Memorandum sets forth certain information concerning the Company,
the Notes, the
other Transaction Documents and the Transactions. Each of Finance
and the
Company hereby confirms that it has authorized the use of the
Preliminary
Memorandum and the Final Memorandum, and any amendment or
supplement thereto, in
connection with the offer and sale of the Notes by the Initial
Purchasers.
1. Representations and Warranties of Finance, the Company and the
Guarantors. As of the date hereof and at the Closing Date, Finance
represents
and warrants, and the Company and the Guarantors jointly and
severally represent
and warrant at the Closing Date upon execution and delivery of the
Joinder
Agreement, in each case, to each Initial Purchaser (it being
understood that
prior to the Closing Date and execution and delivery of the Joinder
Agreement,
all representations and warranties of Finance with respect to the
Company and
its subsidiaries are made to the best knowledge of Finance, after
due inquiry)
that:
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(a) The Preliminary Memorandum does not contain, and the Final
Memorandum, in the form used by the Initial Purchasers to confirm
sales on
the Closing Date, and any amendment or supplement thereto does not
and will
not contain any untrue statement of a material fact or omit to
state any
material fact necessary to make the statements therein, in light of
the
circumstances under which they were made, not misleading; provided,
however, that the representations or warranties set forth in this
paragraph
shall not apply to statements in or omissions from either
Memorandum made
in reliance upon and in conformity with information furnished in
writing to
the Issuer by the Initial Purchasers expressly for use therein, as
specified in Section 11. The statistical and industry data included
in each
Memorandum are based on or derived from sources that the Issuer
believes to
be reliable and accurate.
(b) Each of Finance and the Company has been duly organized and is
validly existing as a corporation in good standing under the laws
of the
State of Delaware. Each of Finance and the Company is duly
qualified to do
business as a foreign corporation and is in good standing under the
laws of
each jurisdiction in which the conduct of its business or its
ownership or
leasing of property requires such qualification, except where the
failure
to so qualify or be in good standing would not have a Material
Adverse
Effect. "Material Adverse Effect" shall mean a material adverse
change in
or effect on or any development having a prospective material
adverse
effect on (i) the business, condition (financial or otherwise),
results of
operations or management of the Company and its subsidiaries, taken
as a
whole, or (ii) the ability of Finance, the Company and each
Guarantor to
perform its obligations under the Notes or the other Transaction
Documents.
(c) Each of Finance, the Company and each Guarantor has full power
(corporate and other) to own or lease its properties and conduct
its
business as described in each Memorandum; and each of Finance, the
Company
and each Guarantor has full power (corporate and other) to enter
into the
Transaction Documents and to carry out all the terms and provisions
hereof
and thereof to be carried out by it.
(d) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Final Memorandum. All of the issued
shares
of capital stock of each of Finance and the Company have been duly
authorized and validly issued and are fully paid and nonassessable;
and
none of the outstanding shares of capital stock of either Finance
or the
Company was issued in violation of the preemptive or other similar
rights
of any security holder of Finance or the Company, as applicable.
(e) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws
of the
jurisdiction of its incorporation, has the corporate power and
authority to
own its property and to conduct its business as described in the
Final
Memorandum and is duly qualified to transact business and is in
good
standing in each jurisdiction in which the conduct of its business
or its
ownership or leasing of property requires such qualification,
except to the
extent that the failure to be so qualified or be in good standing
would
not, individually or in the aggregate, reasonably be expected to
have a
Material Adverse Effect; all of the issued shares of capital stock
of each
subsidiary of the Company have been duly and validly authorized and
issued,
are fully paid and non-assessable, and are owned directly by the
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Company, free and clear of all liens, encumbrances, equities or
claims
(other than those imposed by the Securities Act and the securities
or "Blue
Sky" laws of certain jurisdictions and those imposed by the Credit
Agreement).
(f) No subsidiary of the Company is prohibited, directly or
indirectly, from paying any dividends to the Company, from making
any other
distribution on such subsidiary's capital stock, from repaying to
the
Company any loans or advances to such subsidiary from the Company
or from
transferring any of such subsidiary's property or assets to the
Company or
any other subsidiary of the Company, except as provided by
applicable laws
or regulations, by the Indenture or the Credit Agreement or as
otherwise
disclosed in the Final Memorandum.
(g) Except for employee and director stock options or as otherwise
disclosed in the Final Memorandum or for such stock options that
will be
terminated upon consummation of the Transactions, there are no
outstanding
(i) securities or obligations of Finance or the Company convertible
into or
exchangeable for any capital stock of Finance or the Company, (ii)
warrants, rights or options to subscribe for or purchase from
Finance or
the Company any such capital stock or any such convertible or
exchangeable
securities or obligations or (iii) obligations of Finance or the
Company to
issue any such capital stock, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or options.
(h) PricewaterhouseCoopers LLP, who has certified the audited
financial statements included in the Final Memorandum and delivered
its
report with respect to the audited financial statements in the
Final
Memorandum, is an independent public accountant with respect to the
Company
within the meaning of the Securities Act and the applicable rules
and
regulations thereunder.
The financial statements (including the notes thereto) of the
Company
and its consolidated subsidiaries in the Final Memorandum fairly
present in
all material respects the financial position, results of
operations, cash
flows and changes in stockholders' equity of the Company and its
consolidated subsidiaries as of the dates and for the periods
specified
therein; since the date of the latest of such financial statements,
there
has been no change nor any development or event involving a
prospective
change which has had or could reasonably be expected to have a
Material
Adverse Effect; such financial statements have been prepared in all
material respects in accordance with generally accepted accounting
principles consistently applied throughout the periods involved
(except as
otherwise expressly disclosed in the notes thereto) and comply as
to form
in all material respects with the applicable accounting
requirements of
Regulation S-X under the Securities Act; the information set forth
under
the captions "Offering Memorandum Summary -- Summary Consolidated
Historical Financial Information", "Selected Historical
Consolidated
Financial Data" and "Management's Discussion and Analysis of
Financial
Conditions and Results of Operations" in the Final Memorandum has
been
fairly extracted from the financial statements of the Company and
its
consolidated subsidiaries, fairly presents in all material respects
the
information included therein and has been compiled on a basis
consistent
with that of the audited and unaudited financial statements
included in the
Final Memorandum. The material
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assumptions underlying the pro forma financial information included
in the
Final Memorandum include all material assumptions required to give
effect
to the Transactions and events described in the notes thereto, are
reasonable and are described in the Final Memorandum and the pro
forma
adjustments give proper effect to those assumptions and reflect the
proper
application of those adjustments to the applicable historical
financial
statements included in the Final Memorandum.
(i) Subsequent to the respective dates as of which information is
given in the Final Memorandum, (i) none of Finance or the Company
and its
subsidiaries have incurred any material liability or obligation,
direct or
contingent, or entered into any material transaction in each case
not in
the ordinary course of business; (ii) neither Finance nor the
Company has
purchased any of its outstanding capital stock, and has declared,
paid or
otherwise made any dividend or distribution of any kind on any
class of its
capital stock, except as may be necessary to apply the proceeds
from the
sale of the Notes as contemplated under the caption "Use of
Proceeds" in
the Final Memorandum; and (iii) there has not been any material
change in
the capital stock, short-term debt or long-term debt of the Company
and its
subsidiaries, except as disclosed in the Final Memorandum.
(j) The Company and each of its subsidiaries (and, with respect to
clause (i), Finance) maintains a system of internal accounting
controls
sufficient to provide reasonable assurances that (i) transactions
are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to
permit
preparation of financial statements in conformity with generally
accepted
accounting principles and to 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 differences.
(k) This Agreement has been duly authorized, executed and delivered
by
Finance and, at the Closing Date, will have been authorized by the
Company
and each Guarantor.
(l) The Indenture and the Registration Rights Agreement have been
duly
authorized by Finance, and as of the Closing Date, will have been
duly
authorized by the Company and each Guarantor and, on the Closing
Date, will
have been duly executed and delivered by Finance, the Company and
each
Guarantor and, assuming due authorization, execution and delivery
by the
Trustee or the Initial Purchasers respectively, will constitute the
legal,
valid and binding obligations of the Company and each Guarantor,
enforceable against the Company and each Guarantor in accordance
with their
respective terms, except that the enforcement thereof may be
subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium
or other similar laws now or hereafter in effect relating to
creditors'
rights generally, and (ii) general principles of equity and the
discretion
of the court before which any proceeding therefor may be brought;
and the
Indenture and the Registration Rights Agreement will conform in all
material respects to the description thereof in the Final
Memorandum and
will be substantially in the form previously delivered to you.
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(m) The Indenture conforms in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the
"Trust
Indenture Act"), and to the rules and regulations of the Securities
and
Exchange Commission (the "Commission") applicable to an indenture
that is
qualified thereunder.
(n) The Notes have been duly authorized by Finance and, when
executed
and authenticated in the manner provided for in the Indenture and
delivered
to and paid for by the Initial Purchasers as provided in this
Agreement,
immediately prior to the consummation of the Acquisition, will
constitute
the legal, valid and binding obligations of Finance, enforceable
against
Finance in accordance with their terms, and immediately following
the
consummation of the Acquisition, will constitute the legal, valid
and
binding obligations of the Company, enforceable against the Company
in
accordance with their terms except that, in each case, the
enforcement
thereof may be subject to (i) bankruptcy, insolvency,
reorganization,
fraudulent conveyance, moratorium or other similar laws now or
hereafter in
effect relating to creditors' rights generally, and (ii) general
principles
of equity and the discretion of the court before which any
proceeding
therefor may be brought, and will be entitled to the benefits of
the
Indenture and the Registration Rights Agreement; the Guarantees, as
of the
Closing Date, will have been duly authorized by each Guarantor and
upon the
due issuance and delivery of the related Notes and the due
endorsement of
the Guarantees thereon, will have been duly executed, endorsed and
delivered and will constitute valid and legally binding obligations
of each
of the Guarantors, and will be entitled to the benefits of the
Indenture;
the Exchange Notes (as defined in the Registration Rights
Agreement) have
been duly authorized by Finance and as of the Closing Date, will
have been
duly authorized by the Company and, when executed and authenticated
in the
manner provided for in the Registration Rights Agreement and the
Indenture,
will constitute the legal, valid and binding obligations of
Finance, prior
to the execution of the Joinder Agreement, and the Company,
following the
execution of the Joinder Agreement, enforceable against Finance or
the
Company, as applicable, in accordance with their terms, except that
the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar
laws now
or hereafter in effect relating to creditors' rights generally, and
(ii)
general principles of equity and the discretion of the court before
which
any proceeding therefor may be brought, and will be entitled to the
benefits of the Indenture and the Registration Rights Agreement;
and the
Notes and the Exchange Notes will conform in all material respects
to the
descriptions thereof in the Final Memorandum.
(o) The execution, delivery and performance by Finance, the Company
and each Guarantor of the Transaction Documents, the issuance and
sale of
the Notes and the compliance by Finance, the Company and each
Guarantor
with all of the provisions of the Notes, the Indenture, the
Registration
Rights Agreement and this Agreement and the consummation of the
transactions contemplated hereby and thereby will not (i) conflict
with,
result in a breach or violation of, or constitute a default under,
any
indenture, mortgage, deed of trust or loan agreement, stockholders'
agreement or any other agreement or instrument to which Finance,
the
Company or any of its subsidiaries is a party or by which Finance,
the
Company or any of its subsidiaries is bound or any of their
respective
properties are subject (except such as will not individually or in
the
aggregate have a Material Adverse Effect), or with the certificate
of
incorporation or by-laws of Finance, the Company or any of its
subsidiaries, or any statute, rule or regulation or any
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judgment, order or decree of any governmental authority or court or
any
arbitrator applicable to Finance, the Company or any of its
subsidiaries,
or (ii) require the consent, approval, authorization, order,
registration
or filing or qualification with, any governmental authority or
court, or
body or arbitrator having jurisdiction over Finance, the Company or
any of
its subsidiaries (other than those consents, approvals,
authorizations,
orders, registrations or filings or qualifications that have been
obtained
prior to delivery of the Notes), except such as may be required by
the
securities or Blue Sky laws of the various states in connection
with the
offer or sale of the Notes and by Federal and state securities laws
with
respect to the obligations of Finance, the Company and the
Guarantors under
the Registration Rights Agreement.
(p) No legal or governmental proceeding or investigation is pending
or, to the knowledge of Finance and, as of the Closing Date, the
Company,
threatened to which Finance, the Company or any of its subsidiaries
is a
party or to which any of the properties of Finance, the Company or
any of
its subsidiaries is subject, other than proceedings accurately
described in
the Final Memorandum that, if determined adversely to Finance, the
Company
or any of its subsidiaries, would not, singly or when aggregated
with other
proceedings based on the same facts, would result in a Material
Adverse
Effect.
(q) Each of the Company and each Guarantor is not now nor after
giving
effect to the issuance of the Notes and the execution, delivery and
performance of the Transaction Documents and the consummation of
the
transactions contemplated thereby or described in the Preliminary
Memorandum or the Final Memorandum will be (in each case on a
consolidated
basis) (i) insolvent, (ii) left with unreasonably small capital
with which
to engage in its anticipated business or (iii) incurring debts or
other
obligations beyond its ability to pay such debts or obligations as
they
become due.
(r) None of Finance, the Company and its Affiliates (as defined in
Rule 501(b) of Regulation D under the Securities Act ("Regulation
D")) have
distributed and, prior to the later of (i) the Closing Date and
(ii) the
completion of the distribution of the Notes, will distribute any
offering
material in connection with the offering and sale of the Notes
other than
the Preliminary Memorandum, the Final Memorandum or any amendment
or
supplement thereto.
(s) The Company and its subsidiaries have not sustained, since the
date of the latest audited financial statements included in the
Final
Memorandum, any loss or interference with its business or
properties from
fire, explosion, flood, accident or other calamity, whether or not
covered
by insurance, or from any labor dispute or court or governmental
action,
order or decree (whether domestic or foreign) otherwise than as set
forth
in the Final Memorandum; and, since such date, there has not
occurred any
change or development having a Material Adverse Effect.
(t) The statements set forth in the offering memorandum under the
caption "Description of Notes," insofar as they purport to
constitute a
summary of the terms of the Notes, the Guarantees and the
Indenture, and
under the captions "Description of Certain Indebtedness," "Exchange
Offer;
Registration Rights" and "Material United States Federal Tax
Considerations," insofar as they purport to describe the provisions
of
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the laws and documents referred to therein, are accurate, complete
and fair
in all material respects.
(u) The Company and its subsidiaries have good and marketable title
in
fee simple to all items of real property and good and marketable
title to
all personal property owned by each of them free and clear of any
pledge,
lien, encumbrance, security interest or other defect or claim of
any third
party, except as described in the Final Memorandum or to the extent
the
failure to have such title or the existence of such pledges, liens,
encumbrances, security interests, defects or claims would not,
individually
or in the aggregate, reasonably be expected to have a Material
Adverse
Effect. Any property leased by the Company and its subsidiaries is
held
under valid, subsisting and enforceable leases, and there is no
default
under any such lease or any other event that with notice or lapse
of time
or both would constitute a default thereunder.
(v) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended,
including the
regulations and published interpretations thereunder ("ERISA"), or
Section
4975 of the Internal Revenue Code of 1986, as amended from time to
time
(the "Code")) or "accumulated funding deficiency" (as defined in
Section
302 of ERISA) or any of the events set forth in Section 4043(c) of
ERISA
(other than events with respect to which the 30-day notice
requirement
under Section 4043 of ERISA has been waived) has occurred, exists
or is
reasonably expected to occur with respect to any employee benefit
plan (as
defined in Section 3(3) of ERISA) which the Company or any of its
subsidiaries maintains, contributes to or has any obligation to
contribute
to, or with respect to which the Company or any of its subsidiaries
has any
liability, direct or indirect, contingent or otherwise (a "Plan");
each
Plan is in compliance with its terms and applicable law, including
ERISA
and the Code (except where the failure to comply could not have a
Material
Adverse Effect); none of the Company or any of its subsidiaries has
incurred or expects to incur liability under Title IV of ERISA with
respect
to the termination of, or withdrawal from, any Plan; and each Plan
that is
intended to be qualified under Section 401(a) of the Code is so
qualified
and has received a favorable determination letter and nothing has
occurred,
whether by action or failure to act, which could reasonably be
expected to
cause the loss of such qualification.
(w) Except as disclosed in each Memorandum, no labor dispute with
the
employees of the Company or any of its subsidiaries exists, is
imminent or
is threatened which could reasonably be expected to result in a
Material
Adverse Effect.
(x) The Company and each of its subsidiaries owns or otherwise
possesses adequate rights to use all material patents, trademarks,
service
marks, trade names and copyrights, all applications and
registrations for
each of the foregoing, and all other material proprietary rights
and
confidential information necessary to conduct their respective
businesses
as currently conducted; none of the Company or any of its
subsidiaries has
received any written notice, or is otherwise aware, of any
infringement of
or conflict with the rights of any third party with respect to any
of the
foregoing.
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(y) Each of the Company and its subsidiaries carries insurance in
such
amounts and covering such risks as it believes to be consistent
with
industry practice to protect the Company and its Subsidiaries and
their
respective businesses.
(z) The Company and each of its subsidiaries has complied with all
laws, ordinances, regulations and orders applicable to the Company
and its
subsidiaries and their respective businesses, and none of the
Company or
any of its subsidiaries has received any written notice to the
contrary;
and each of the Company and its subsidiaries possesses all
certificates,
authorizations, permits, licenses, approvals, orders and franchises
(collectively, "Licenses") necessary to conduct their respective
businesses
in the manner and to the full extent now operated or proposed to be
operated as described in the Final Memorandum, in each case issued
by the
appropriate federal, state, local or foreign governmental or
regulatory
authorities (collectively, the "Agencies"), and each other federal,
state
and local agency the regulations of which are applicable to the
businesses
or products of the Company and its subsidiaries, except where the
failure
to so comply or to possess such Licenses could not have a Material
Adverse
Effect. The Licenses are in full force and effect and no proceeding
has
been instituted or threatened in writing which in any manner
affects or
calls into question the validity or effectiveness thereof.
(aa) The Company is in compliance in all material respects with the
provisions of the Sarbanes-Oxley Act of 2002 (the "Sarbanes-Oxley
Act"), to
the extent currently applicable.
(bb) The Company and each of its subsidiaries is and has been in
compliance with all applicable laws, statutes, ordinances, rules,
regulations, orders, judgments, decisions, decrees, standards, and
requirements relating to: human health and safety; pollution;
management,
disposal or release of any chemical substance, product or waste;
and
protection, cleanup, remediation or corrective action relating to
the
environment or natural resources ("Environmental Law");
(i) The Company and each of its subsidiaries has obtained and is
in compliance with the conditions of all permits, authorizations,
licenses, approvals and variances necessary under any Environmental
Law for the continued conduct in the manner now conducted of their
respective businesses ("Environmental Permits");
(ii) There are no past or present conditions or circumstances,
including but not limited to pending changes in any Environmental
Law
or Environmental Permits, that are likely to interfere with the
conduct of the business of the Company and its subsidiaries in the
manner now conducted or which would interfere with compliance with
any
Environmental Law or Environmental Permits; and
(iii) There are no past or present conditions or circumstances
at, or arising out of, their respective businesses, assets and
properties of the Company and each of its subsidiaries or any
business, assets or properties formerly leased, operated or owned
by
the Company or any of its subsidiaries, including but not limited
to
on-site or off-site disposal or release of any chemical substance,
product or waste, which may give rise to (A) liabilities or
obligations for any
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cleanup, remediation or corrective action under any Environmental
Law;
(B) claims arising under any Environmental Law for personal injury,
property damage, or damage to natural resources; (C) liabilities or
obligations incurred by the Company or its subsidiaries or any
other
Guarantor to comply with any Environmental Law; or (D) fines or
penalties arising under any Environmental Law;
except in each case for any noncompliance or conditions or
circumstances
that, singly or in the aggregate, would not result in a Material
Adverse
Effect.
(cc) Neither Finance, the Company nor any of its subsidiaries is in
violation of its certificate of incorporation or its bylaws; and no
default
or breach exists, and no event has occurred that, with notice or
lapse of
time or both, would constitute a default in the due performance and
observation of any term, covenant or condition of any indenture,
mortgage,
deed of trust, lease, loan agreement, stockholders' agreement or
any other
agreement or instrument ("Contracts") to which the Company or any
of its
subsidiaries is a party or by which the Company or any of its
subsidiaries
is bound or to which any of their respective properties are subject
except
such default or breach in the due performance and observation of
the terms
of Contracts that, singly or in the aggregate, would not result in
a
Material Adverse Effect.
(dd) The Company and each of its subsidiaries has filed all
material
foreign, federal, state and local tax returns that are required to
be filed
or has requested extensions thereof and has paid all material taxes
required to be paid by it and any other assessment, fine or penalty
relating to taxes levied against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine
or
penalty that is currently being contested in good faith and for
which the
Company and its subsidiaries retain adequate reserves in accordance
with
generally accepted accounting principles.
(ee) Except as disclosed in the Final Memorandum, there are no
contracts, agreements or understandings between Finance, the
Company or any
of its subsidiaries and any person granting such person the right
to
require Finance, the Company or any of its subsidiaries to file a
registration statement under the Securities Act or to require
Finance or
the Company to include any securities held by any person in any
registration statement filed by Finance or the Company under the
Securities
Act.
(ff) Neither Finance, the Company nor any Guarantor is, nor after
giving effect to the offering and sale of the Notes and the
application of
the proceeds thereof as described in the Final Memorandum under the
caption
"Use of Proceeds" will be, an "investment company" or "promoter" or
"principal underwriter" for an "investment company", within the
meaning of
the Investment Company Act of 1940, as amended (the "Investment
Company
Act").
(gg) Within the preceding six months, none of Finance, the Company
or
any of its Affiliates has, directly or through any agent, made
offers or
sales of any security of the Company, or solicited offers to buy or
otherwise negotiated in respect of any securities of
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the Company of the same or a similar class as the Notes, other than
the
Notes offered or sold to the Initial Purchasers hereunder.
(hh) None of Finance, the Company or any of its Affiliates has,
directly or through any person acting on its or their behalf (other
than
the Initial Purchasers, as to which no statement is made), offered,
solicited offers to buy or sold the Notes by any form of general
solicitation or general advertising (within the meaning of
Regulation D) or
in any manner involving a public offering within the meaning of
Section
4(2) of the Securities Act.
(ii) None of Finance, the Company, any of its Affiliates, nor any
person acting on its or their behalf (other than the Initial
Purchasers, as
to which no statement is made), has engaged in any directed selling
efforts
with respect to the Notes, and each of them has complied with the
offering
restrictions requirement of Regulation S. Terms used in this
paragraph have
the meanings given to them by Regulation S.
(jj) None of Finance, the Company or any of its Affiliates has
taken,
directly or indirectly, any action designed to cause or result in,
or which
has constituted or which might reasonably be expected to cause or
result
in, stabilization or manipulation of the price of any security of
the
Company to facilitate the sale or resale of the Notes; nor has the
Company
or any of its Affiliates paid or agreed to pay to any person any
compensation for soliciting another to purchase any securities of
the
Company (except as contemplated by this Agreement).
(kk) The Notes satisfy the eligibility requirements of Rule
144A(d)(3)
under the Securities Act.
(ll) Assuming the accuracy of the representations and warranties of
the Initial Purchasers in Section 3 hereof and compliance by the
Initial
Purchasers with the procedures set forth in Section 3 hereof, it is
not
necessary in connection with the offer, sale and delivery of the
Notes to
the Initial Purchasers in the manner contemplated by this Agreement
and
disclosed in the Preliminary Memorandum and the Final Memorandum to
register the Notes or the related Guarantees under the Securities
Act or to
qualify the Indenture under the Trust Indenture Act.
(mm) None of the Transactions (including, without limitation, the
use
of proceeds from the sale of the Notes) will violate or result in a
violation of Section 7 of the Securities Exchange Act of 1934, as
amended
(the "Exchange Act") or any regulation promulgated thereunder,
including,
without limitation, Regulations T, U and X of the Board of
Governors of the
Federal Reserve System.
(nn) There are, and during the last 12 months there have been, no
material disputes between the Company and any of its ten largest
suppliers
over such 12-month period (as measured by dollar volume of goods
purchased
by the Company) ("Material Suppliers") or ten largest customers
over such
12-month period (as measured by dollar volume of goods sold by the
Company)
("Material Customers"). To the knowledge of the Company, its
relations with
its Material Suppliers and Material Customers are good,
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and the Company has received no notice, and is not otherwise aware,
of any
anticipated dispute with any of its Material Suppliers and Material
Customers, or that (i) any Material Supplier intends to cease or
reduce its
supply to the Company or (ii) any Material Customer intends to
cease or
reduce its purchases from the Company.
(oo) Except as disclosed in the Final Memorandum, there are no
agreements, arrangements or understandings that will require the
payment of
any commissions, fees or other remuneration to any investment
banker,
broker, finder or intermediary in connection with the transactions
contemplated by this Agreement.
(pp) The Company does not intend to treat any of the transactions
contemplated by the Note Documents as being a "reportable
transaction"
(within the meaning of Treasury Regulation Section 1.6011-4). In
the event
the Company determines to take any action inconsistent with such
intention,
it will promptly notify the Representative thereof. Accordingly, if
the
Company so notifies the Representative, the Company acknowledges
that one
or more of the Initial Purchasers may treat its purchase and resale
of
Notes as part of a transaction that is subject to Treasury
Regulation
Section 301.6112-1, and such Initial Purchaser or Initial
Purchasers, as
applicable, will maintain the lists and other records required by
such
Treasury Regulation.
(qq) There are no stamp or other issuance or transfer taxes or
duties
or other similar fees or charges required to be paid in connection
with the
execution and delivery of this Agreement or the issuance or sale by
the
Company of the Notes.
Each certificate signed by any officer of Finance, the Company or
the Guarantors
and delivered to the Initial Purchasers or their counsel shall be
deemed to be a
representation and warranty by Finance, the Company or the
Guarantors, as the
case may be, to the Initial Purchasers as to the matters covered
thereby.
2. Purchase, Sale and Delivery of the Notes. On the basis of the
representations, warranties, agreements and covenants herein
contained and
subject to the terms and conditions herein set forth, Finance
agrees to issue
and sell $190,000,000 aggregate principal amount of Notes, and each
of the
Initial Purchasers, severally and not jointly, agree to purchase
from Finance
the principal amount of Notes set forth opposite the name of such
Initial
Purchaser in Schedule I hereto at a purchase price equal to 95.897%
of the
principal amount thereof (the "Purchase Price"). One or more
certificates in
definitive form or global form, as instructed by the Representative
for the
Notes that the Initial Purchasers have severally agreed to purchase
hereunder,
and in such denomination or denominations and registered in such
name or names
as the Representative requests upon notice to Finance not later
than one full
business day prior to the Closing Date (as defined below), shall be
delivered by
or on behalf of Finance to the Representative for the respective
accounts of the
Initial Purchasers, with any transfer taxes payable in connection
with the
transfer of the Notes to the Initial Purchasers duly paid, against
payment by or
on behalf of the Initial Purchasers of the Purchase Price therefor
by wire
transfer in Federal or other funds immediately available to the
account of
Finance. Such delivery of and payment for the Notes shall be made
at the offices
of Schulte Roth & Zabel LLP ("Counsel for the Company"), 919
Third Avenue, New
York, New York at 9:00 A.M., New York City time, on September 21,
2005, or at
such other place, time or date as the Representative and Finance
may agree upon,
such time and date of delivery against payment being herein
referred to as the
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"Closing Date". Finance will make such certificate or certificates
for the Notes
available for examination by the Initial Purchasers at the New
York, New York
offices of Counsel for the Company not later than 9:00 A.M., New
York City time
on the business day prior to the Closing Date.
3. Offering of the Notes and the Initial Purchasers'
Representations
and Warranties. Each of the Initial Purchasers, severally and not
jointly,
represent and warrant to and agree with Finance, prior to the
Closing Date, and
the Company and the Guarantors, on the Closing Date, that:
(a) It is a qualified institutional buyer as defined in Rule 144A
under the Securities Act (a "QIB").
(b) It will solicit offers for such Notes only from, and will offer
such Notes only to, persons that it reasonably believes to be (A)
in the
case of offers inside the United States, QIBs or (B) in the case of
offers
outside the United States, to persons other than U.S. persons
("foreign
purchasers", which term shall include dealers or other professional
fiduciaries in the United States acting on a discretionary basis
for
foreign beneficial owners (other than an es
