PURCHASE AGREEMENT

the Company named therein, GMAC Commercial Finance LLC, and the other lenders signatory thereto, which provides for a revolving loan facility in an amount of up to $20.0 million (the “ Credit Agreement ”).

2.              Terms of Offering .  The Initial Purchaser has advised the Issuer and the Company, and the Issuer and the Company understand, that the Initial Purchaser will make offers to sell (the “ Exempt Resales ”) the Notes purchased by the Initial Purchaser hereunder on the terms set forth in the Final Offering Circular solely to persons (the “ Subsequent Purchasers ”) whom the Initial Purchaser reasonably believes to be (i) “qualified institutional buyers” (“ QIBs ”) as defined in Rule 144A under the Act (ii) (based upon written representations made by such persons to the Initial Purchaser) institutional “accredited investors” as defined in Rule 501(a)(1), (2), (3) or (7) under the Act (“ Accredited Investors ”) or (iii) non-U.S. persons in reliance upon Regulation S under the Act.

Pursuant to the Indenture (as supplemented by the Supplemental Indenture defined below), all Domestic Restricted Subsidiaries of the Company shall jointly and severally and fully and unconditionally guarantee, on a senior secured basis, to each holder of the Notes and the Trustee, the payment and performance of the Company’s obligations under the Indenture and the Notes (each such subsidiary being referred to herein as a “ Guarantor ” and each such guarantee being referred to herein as a “ Guarantee ”).  

Pursuant to the terms of the Collateral Agreements, all of the obligations under the Notes and the Indenture will be secured by a lien and security interest in substantially all of the assets of the Company and its Domestic Restricted Subsidiaries (other than, as provided by the Collateral Agreements, certain excluded assets such as the leasehold interests of the Company or its subsidiaries and the Capital Stock of any of their respective subsidiaries); provided however that the liens securing all of the obligations under the Notes and the Indenture will be contractually subordinated to the liens securing the Credit Agreement with respect to collateral consisting of accounts, inventory and certain related assets.

Holders of the Notes (including Subsequent Purchasers) will have the registration rights set forth in the registration rights agreement applicable to the Notes (the “ Registration Rights Agreement ”), to be executed on and dated as of the Closing Date, in a form reasonably acceptable to the Issuer and the Initial Purchaser in conformity with the description of such registration rights contained in the Offering Circular.  Pursuant to the Registration Rights Agreement, the Company will agree, among other things, to file with the Securities and Exchange Commission (the “ SEC ”) (a) a registration statement under the Act relating to Senior Secured Notes (the “ Exchange Notes ”) which shall be identical to the Notes (except that the Exchange Notes shall have been registered pursuant to such registration statement and will not be subject to restrictions on transfer or contain additional interest provisions) to be offered in exchange for the Notes (such offer to exchange being referred to as the “ Exchange Offer ”), and/or (b) under certain circumstances, a shelf registration statement pursuant to Rule 415 under the Act (the “ Shelf Registration Statement ”) relating to the resale by certain holders of the Notes.  If required under the Registration Rights Agreement, the Company will issue Exchange Notes to the Initial Purchaser (the “ Private Exchange Notes ”).  If the Company fails to satisfy its obligations under the Registration Rights Agreement, it will be required to pay additional interest to the holders of the Notes under certain circumstances in accordance with the terms of the Registration Rights Agreement.

Effective upon consummation of the Merger, the Company will assume the Issuer’s obligations under the Indenture, the Collateral Agreements and the Notes, and will cause the Guarantors to become Guarantors and execute a supplemental indenture (the “Supplemental Indenture”) to the Indenture as required by the Indenture.

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This Agreement, the Indenture, the Supplemental Indenture, the Collateral Agreements, the Registration Rights Agreement, the Notes, the Guarantees, the Exchange Notes and the Private Exchange Notes are collectively referred to herein as the “ Documents .”

3.              Purchase, Sale and Delivery .  On the basis of the representations, warranties, agreements and covenants herein contained and subject to the terms and conditions herein set forth, the Issuer agrees to issue and sell to the Initial Purchaser, and the Initial Purchaser agrees to purchase from the Issuer, $105,000,000 aggregate principal amount of Notes for a purchase price equal to the aggregate principal amount thereof, net of fees and commissions to the Initial Purchaser in an amount equal to $5,150,000, of which $3,150,000 is commissions. Delivery to the Initial Purchaser of and payment for the Notes shall be made at a Closing (the “ Closing ”) to be held at 10:00 a.m., New York time, on February 1, 2005 (the “ Closing Date ”) at the New York offices of Dechert LLP.  The Closing Date and time and location of the Closing may be varied by agreement between the Initial Purchaser and the Issuer.

The Issuer shall deliver to the Initial Purchaser one or more certificates representing the Notes in definitive form, registered in such names and denominations as the Initial Purchaser may request upon at least two business days prior to the Closing, against payment by the Initial Purchaser of the purchase price therefor by immediately available Federal funds bank wire transfer to such bank account or accounts as the Issuer shall designate to the Initial Purchaser at least two business days prior to the Closing.  The certificates representing the Notes in definitive form shall be made available to the Initial Purchaser for inspection at the New York offices of Dechert LLP (or such other place as shall be reasonably acceptable to the Initial Purchaser) not later than the close of business one business day immediately preceding the Closing Date.  Notes to be represented by one or more definitive global securities in book-entry form will be deposited on the Closing Date, by or on behalf of the Issuer, with The Depository Trust Company (“ DTC ”) or its designated custodian, and registered in the name of Cede & Co.

4.              Representations and Warranties of the Issuer, the Company and the Guarantors .  The Issuer represents and warrants to the Initial Purchaser that:

(a)            The Preliminary Offering Circular as of its date did not, and the Final Offering Circular as of its date did not, and as of the Closing Date will not, contain any untrue statement of a material fact, or omit to state a material fact (except in the case of the Preliminary Offering Circular, for pricing terms and other financial or similar terms intentionally left blank) necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this Section 4(a)  do not apply to statements or omissions made in reliance upon and in conformity with information relating to the Initial Purchaser and furnished to the Issuer or the Company in writing by the Initial Purchaser expressly for use in the Preliminary Offering Circular or the Final Offering Circular.  No injunction or order has been issued that either (i) asserts that any of the transactions contemplated by the Documents is subject to the registration requirements of the Act or (ii) would prevent or suspend the issuance or sale of any of the Notes or the use of the Preliminary Offering Circular, the Final Offering Circular or any amendment or supplement thereto, in any jurisdiction.  Each of the Preliminary Offering Circular and the Final Offering Circular, as of their respective dates contained, and the Final Offering Circular, as of the Closing Date will contain, all the information specified in, and meet the requirements of Rule 144A(d)(4) under the Act.

(b)            Each corporation, partnership, or other entity in which the Company, directly or indirectly through any of its subsidiaries, owns more than fifty percent (50%) of any class of equity securities or interests is listed on Schedule I attached hereto (the “ Subsidiaries ”).  Each such Subsidiary that is a Foreign Restricted Subsidiary has an asterisk (“*”) next to its name on such

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schedule.  Acquisition Corporation does not have any Subsidiaries as of the date hereof and as of the Closing Date will not have any Subsidiaries other than as a result of the Acquisition.

(c)            Each of the Issuer, the Company and the Subsidiaries (i) has been duly organized or formed and is a validly existing corporation or limited liability company, as the case may be, and is in good standing under the laws of its jurisdiction of organization, (ii) has all requisite corporate or limited liability company power and corporate or limited liability company authority to carry on its business and to own, lease and operate its properties and assets as described in the Offering Circular, and (iii) is duly qualified or licensed to do business and is in good standing as a foreign corporation or limited liability company, as the case may be, authorized to do business in each jurisdiction in which the nature of such businesses or the ownership or leasing of such properties requires such qualification, except where the failure to be so qualified, licensed or in good standing would not, individually or in the aggregate, have a material adverse effect on (A) the properties, business, operations, assets, liabilities or financial condition of the Issuer, the Company and the Company’s Subsidiaries, taken as a whole, (B) the ability of each of the Issuer, the Company or the Guarantors to perform their respective obligations in all material respects under any of the Documents, (C) the attachment, perfection or priority of any of the Liens or security interests intended to be created by the Collateral Agreements which Liens or security interests are, individually or in the aggregate, material, or (D) the validity or enforceability of any of the Documents, and (E) the consummation of any of the transactions contemplated under any of the Documents (each, a “ Material Adverse Effect ”).

(d)            All of the issued and outstanding shares of capital stock of the Company have been duly authorized, validly issued, and are fully paid and nonassessable, and were not issued in violation of, and are not subject to, any preemptive or similar rights.  The column titled “Actual” in the table under the caption “ Capitalization ” in the Final Offering Circular (including the footnotes thereto) sets forth, as of its date, the capitalization of the Company.  All of the outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company are owned, directly or indirectly, by the Company, free and clear of all liens, security interests, mortgages, pledges, charges, equities, claims or restrictions on transferability or encumbrances of any kind other than those (i) imposed by the Act or the securities or “Blue Sky” laws of certain domestic or foreign jurisdictions, (ii) granted pursuant to or in connection with the Company’s existing credit facility, existing notes or existing letters of credit or (iii) contemplated by this Agreement, the Credit Agreement, or any of the Documents (collectively, the “Liens”).  Except as disclosed in the Offering Circular and except in connection with the Acquisition and the Merger, upon the effectiveness of the Merger, there are no outstanding (A) options, warrants or other rights to purchase from the Company or any of its Subsidiaries, (B) agreements, contracts, arrangements or other obligations of the Company or any of its Subsidiaries to issue or (C) other rights to convert any obligation into or exchange any securities for, in the case of each of clauses (A)  through (C) , shares of capital stock of or other ownership or equity interests in the Company or any of the Subsidiaries.

(e)            Except as contemplated by this Agreement or the Registration Rights Agreement, no holder of securities of the Company or any of its Subsidiaries will be entitled to have such securities registered under the registration statements required to be filed by the Company and the Guarantors with respect to the Notes pursuant to the Registration Rights Agreement.

(f)             The Company and each of the Guarantors that is a corporation has all requisite corporate power and corporate authority, and each of the Guarantors that is a limited liability company has all the requisite limited liability company power and limited liability company authority, to execute, deliver and perform its obligations under the Documents to which it is a party and to consummate the transactions contemplated thereby.

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(g)            This Agreement has been duly and validly authorized, executed and delivered by the Issuer, the Company and each of the Guarantors.  The execution, delivery and performance of the Indenture, the Supplemental Indenture and the Collateral Agreements have been duly and validly authorized by, to the extent party thereto, the Issuer, the Company and the Guarantors.  Each of the Indenture, the Supplemental Indenture and the Collateral Agreements, when executed and delivered by the Issuer, the Company and the Guarantors, as applicable, and assuming due authorization, execution and delivery by the Trustee and the Collateral Agent, will constitute a legal, valid and binding obligation of each of the Issuer, the Company and the Guarantors, as applicable, enforceable against each of the Issuer, the Company and the Guarantors, as applicable, in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally, (ii) general principles of equity (whether considered in a proceeding at law or in equity) and the discretion of the court or other body before which any proceeding therefor may be brought, and (iii) an implied covenant of good faith and fair dealing, and except as rights to indemnity and contribution may be limited by federal or state securities laws or public policy considerations.

(h)            The Registration Rights Agreement has been duly and validly authorized by the Company and the Guarantors.  The Registration Rights Agreement, when executed and delivered by the Company and the Guarantors and assuming due authorization, execution and delivery by the Initial Purchaser, will constitute a legal, valid and binding obligation of the Company and the Guarantors, enforceable against the Company and the Guarantors in accordance with its terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally and (ii) general principles of equity (whether considered in a proceeding at law or in equity) and the discretion of the court or other body before which any proceeding therefor may be brought, and (iii) an implied covenant of good faith and fair dealing, and (B) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations.

(i)             The Notes, when issued, will be in the form contemplated by the Indenture.  When duly executed and delivered by the Issuer, and to the extent parties thereto, the Guarantors, the Indenture (as supplemented by the Supplemental Indenture) will meet the requirements for qualification under the Trust Indenture Act of 1939, as amended (the “ TIA ”).  The Notes, Exchange Notes and Private Exchange Notes have each been duly and validly authorized by the Issuer (and by the Company, effective upon the Merger) and, in the case of the Notes, when duly authenticated by the Trustee, delivered to and paid for by the Initial Purchaser in accordance with the terms of this Agreement and the Indenture, the Notes will have been duly executed, validly issued and delivered by the Issuer and will be legal, valid and binding obligations of the Issuer, and effective upon the effectiveness of the Merger, the Company, entitled to the benefit of the Indenture and the Supplemental Indenture and, effective upon effectiveness of the Merger, enforceable against the Company in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally, (ii) general principles of equity (whether considered in a proceeding at law or in equity) and the discretion of the court before which any proceeding therefor may be brought, and (iii) an implied covenant of good faith and fair dealing, and except as rights to indemnity and contribution may be limited by federal or state securities laws or public policy considerations.

(j)             The Guarantees have been duly and validly authorized by the Guarantors and, when executed by the Guarantors in accordance with the terms of the Indenture and the Supplemental Indenture, and assuming due authentication of the Notes by the Trustee, upon delivery to the Initial Purchaser

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against payment therefor in accordance with the terms of this Agreement and the Indenture, effective upon effectiveness of the Merger will have been duly executed, issued and delivered by each such Guarantor and will be legal, valid and binding obligations of the Guarantors, entitled to the benefit of the Indenture and the Supplemental Indenture and, effective upon effectiveness of the Merger, enforceable against the Guarantors in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally, (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought, and (iii) an implied covenant of good faith and fair dealing, and except as rights to indemnity and contribution may be limited by federal or state securities laws or public policy considerations.

(k)            None of the Issuer, the Company or any of the Company’s Subsidiaries is in violation of its certificate of incorporation, by-laws or other organizational documents (the “ Charter Documents ”).  None of the Issuer, the Company or any of the Company’s Subsidiaries is (i) in violation of any Federal, state, local or foreign statute, law (including, without limitation, common law) or ordinance, or any judgment, decree, rule, regulation or order applicable to any of them or their respective properties (collectively, “ Applicable Law ”) of any federal, state, local and other governmental authority, governmental or regulatory agency or body, court, arbitrator or self-regulatory organization, domestic or foreign, with jurisdiction over any of them or any of their respective properties (each, a “ Governmental Authority ”), or (ii) in breach of or default under any bond, debenture, note or other evidence of indebtedness, indenture, mortgage, deed of trust, lease or any other agreement or instrument to which any of them is a party or by which any of them or their respective property is bound (collectively, “ Applicable Agreements ”), other than as disclosed in the Final Offering Circular and except for such violations, breaches or defaults that could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.  There exists no condition that, with the passage of time or otherwise, would constitute (a) a violation of any such (1) Charter Document or (2) Applicable Law, (b) a breach of or default under any Applicable Agreement or (c) result in the imposition of any penalty or the acceleration of any indebtedness that in the case of clause (a)(2) , (b)  or (c)  above could reasonably be expected to result in a Material Adverse Effect.

(l)             Neither the execution, delivery or performance by the Issuer, the Company or the Guarantors of the Documents to which they are parties nor the consummation by them of any transactions contemplated therein will conflict with, violate, constitute a breach of or a default (with the passage of time or otherwise) under, require the consent of any person (other than consents already obtained and in full force and effect or that will have been obtained on or prior to the Closing Date) under, result in the imposition of a Lien on any assets of the Issuer, the Company or any of the Company’s Subsidiaries, or result in an acceleration of indebtedness under or pursuant to (i) the Charter Documents, (ii) any Applicable Agreement, or (iii) assuming the accuracy of the representations and warranties of the Initial Purchaser in Section 6 of this Agreement and, in the case of any Exempt Resales made to Accredited Investors, the accuracy of the representations and warranties of such Accredited Investors contained in the Accredited Investor Letters executed by such Accredited Investors, any Applicable Law, except for conflicts, violations, breaches, defaults, consent requirements, Lien impositions or the acceleration of indebtedness that could not reasonably be expected to result, in the case of clauses (ii)  or (iii)  above, a Material Adverse Effect.

(m)           When executed and delivered, the Documents will conform in all material respects to the descriptions thereof in the Final Offering Circular.

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(n)            Assuming the accuracy of the representations and warranties of the Initial Purchaser in Section 6 of this Agreement and, in the case of any Exempt Resales made to Accredited Investors, the accuracy of the representations and warranties of such Accredited Investors contained in the Accredited Investor Letters executed by such Accredited Investors, no consent, approval, authorization or order of any Governmental Authority is required for the issuance and sale by the Company of the Notes to the Initial Purchaser or the consummation by the Company of the other transactions contemplated hereby, except (A) such as have been obtained or will be obtained under or made on or prior to the Closing Date, (B) registration of the Exchange Offer or resale of the Notes under the Act pursuant to the Registration Rights Agreement, and qualification of the Indenture under the TIA, in connection with the issuance of the Exchange Notes, (C) such filings and recordings with Governmental Authorities as may be required to perfect liens under the Collateral Agreements and the Credit Agreement, (D) such consents, approvals, authorizations, orders, filings, registrations, qualifications, licenses or permits as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes, (E) in connection with the Merger, the filing of the Certificate of Merger with the Nevada Secretary of State, or (F) which could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.

(o)            Except as disclosed in the Final Offering Circular, there is no action, claim, suit, demand, hearing, notice of violation or deficiency, or proceeding, domestic or foreign (collectively, “ Proceedings ”), pending or, to the knowledge of the Issuer, the Company or any of the Company’s Subsidiaries, threatened, that either (i) seeks to restrain, enjoin, prevent consummation of, or otherwise challenge any of the Documents or any of the transactions contemplated therein, or (ii) individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.  Neither the Issuer nor the Company is subject to any judgment, order, decree, rule or regulation of any Governmental Authority that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.

(p)            Each of the Company and the Guarantors own, license or possess all licenses, permits, certificates, consents, orders, approvals and other authorizations from, and has made all declarations and filings with, all Governmental Authorities, presently required or necessary to own or lease, as the case may be, and to operate their respective properties and to carry on their respective businesses as now or proposed to be conducted as set forth in the Offering Circular (“ Permits ”), except where the failure to obtain such Permits, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect; each of the Company and its Subsidiaries has fulfilled and performed all of its obligations with respect to such Permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the holder of any such Permit, except as otherwise set forth in the Offering Circular or where such failure to fulfill and perform, revocation, termination or material impairment, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect; and neither the Company nor any of its Subsidiaries has received any notice of any proceeding relating to revocation or modification of any such Permit, except as described in the Offering Circular or except where such revocation or modification, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

(q)            Each of the Company and its Subsidiaries has good and insurable title to all real property owned by it and good title to all material personal property owned by it and good and valid title to all leasehold estates in real and personal property being leased by it and, as of the Closing Date, will be free and clear of all Liens.

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(r)             All material Tax returns required to be filed on or prior to the date hereof by the Company or any of its Subsidiaries have been filed (taking into account all applicable extensions) and all such returns when filed were true, complete, and correct in all material respects and all material Taxes that are shown as due thereon from the Company and its Subsidiaries have been paid other than those (i) currently payable without penalty or interest or (ii) being contested in good faith and by appropriate proceedings and for which adequate reserves have been established in accordance with generally accepted accounting principles of the United States, consistently applied (“ GAAP ”).  To the knowledge of the Company, there are no actual or proposed Tax assessments against the Company or any of its Subsidiaries that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  To the knowledge of the Company and its Subsidiaries, the accruals and reserves on the books and records of the Company and its Subsidiaries in respect of any material Tax liability for any period not finally determined are adequate to meet any assessments of Tax for any such period.  For purposes of this Agreement, the term “Tax” and “Taxes” shall mean all Federal, state, local and foreign taxes, and other assessments of a similar nature (whether imposed directly or through withholding), including any interest, additions to tax, or penalties applicable thereto.

(s)                                   Each of the Company and its Subsidiaries owns, licenses, or has the right to use the patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names (collectively, “ Intellectual Property ”) currently used or currently proposed to be used for the operation of its businesses and as of the Closing Date, will be free and clear of all Liens, other than Permitted Liens, except as disclosed in the Offering Circular and except where the failure to so own, license of have the right to use would not reasonably be expected to have a Material Adverse Effect.  To the Company’s knowledge, no claims or notices of any potential claim have been asserted by any person challenging the use of any such Intellectual Property by the Company or any of its Subsidiaries or questioning the validity or effectiveness of the Intellectual Property or any license or agreement related thereto (other than any claims that, if successful, would not, individually or in the aggregate, have a Material Adverse Effect).  To the Company’s knowledge, the current or currently proposed use of such Intellectual Property by the Company or any of its Subsidiaries will not infringe on the Intellectual Property rights of any other person.

(t)             The Company and its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) material transactions are executed in accordance with management’s general or specific authorization, (ii) material transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP, and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any material differences.

(u)            The audited historical consolidated financial statements and related notes of the Company and its Subsidiaries contained in the Final Offering Circular (the “ Financial Statements ”) present fairly in all material respects the consolidated financial position, results of operations and cash flows of the Company and its consolidated Subsidiaries, as of the respective dates and for the respective periods to which they apply and have been prepared in accordance with GAAP.  The historical financial data set forth under “Summary Historical Consolidated Financial Data” and “Selected Historical Consolidated Financial Data” included in the Final Offering Circular has been prepared on a basis consistent with that of the Financial Statements and present fairly in all material respects the consolidated financial position and results of operations of the Company and its consolidated Subsidiaries as of the respective dates and for the respective periods indicated.  The

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statistical and market and industry-related data included in the Final Offering Circular are based on or derived from sources that the Company believes to be reliable and accurate in all material respects.

(v)            Subsequent to the respective dates as of which information is given in the Final Offering Circular, except as disclosed in the Final Offering Circular and except for the Acquisition, the Merger and the transactions contemplated by this Agreement, the Credit Agreement, and the Documents, (i) the Issuer, the Company and the Subsidiaries have not (x) incurred any liabilities, direct or contingent, that are material, individually or in the aggregate, to the Issuer, the Company and the Subsidiaries, considered as one enterprise, or (y) entered into any transactions not in the ordinary course of business which are material with respect to the Issuer, the Company and the Subsidiaries, considered as one enterprise, (ii) there has not been any material decrease in the capital stock or any material increase in long-term indebtedness or any material increase in short-term indebtedness of the Issuer or the Company, or any payment of or declaration to pay any dividends or any other distribution with respect to the Company and (iii) there has not been any material adverse change in the properties, business, operations, assets, liabilities or financial condition of the Issuer, the Company and the Subsidiaries, considered as one enterprise, in the aggregate (each of clauses (i) , (ii)  and (iii) , a “ Material Adverse Change ”).

(w)           On the Closing Date, immediately after the consummation of the Offering, the related financing transactions and the application of the use of proceeds therefrom as indicated in the “Use of Proceeds” section of the Offering Circular, each of the Company and each Guarantor will be solvent.  As used in this paragraph, the term “Solvent” means, with respect to a particular date and a particular Person, that on such date (i) the present fair market value (or present fair saleable value) of the assets of such Person, considered as a whole and as a going concern, is not less than the total amount required to pay the probable liabilities of such Person on its total existing debts and liabilities (including identified contingent liabilities) as they become absolute and matured; (ii) such Person is generally able to pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Notes and Guarantees as contemplated by this Agreement and the Offering Circular, such Person has not incurred debts or liabilities beyond its ability to pay its debts and liabilities as such debts and liabilities mature; (iv) such Person is not engaged in any business or transaction, and does not currently propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged; and (v) such Person is not otherwise insolvent under the standards set forth in applicable laws.  In computing the amount of such contingent liabilities at any time, it is intended that such liabilities will be computed at the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

(x)             Neither the Issuer nor the Company has and, to its knowledge, no one acting on its behalf (other than the Initial Purchaser or anyone acting on its behalf, as to which no representation is made) has, (i) taken, directly or indirectly, any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of the Notes or to facilitate the sale or resale of any of the Notes, (ii) sold, bid for, purchased, or paid anyone any compensation for soliciting purchases of, any of the Notes in a manner that could require registration of the Notes under the Act, or (iii) except as disclosed in the Final Offering Circular, and except in connection with the Acquisition, paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Issuer or the Company.

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(y)            Without limiting any provision herein, no registration under the Act and no qualification of the Indenture under the TIA is required for the sale of the Notes to the Initial Purchaser as contemplated hereby or for the Exempt Resales, assuming (i) that the purchasers in the Exempt Resales are QIBs or Accredited Investors or non-U.S. persons (as defined under Regulation S of the Act), (ii) the accuracy of the Initial Purchaser’s representations contained in Section 6, and (iii) the accuracy of the representations made by each Accredited Investor who purchases Notes pursuant to an Exempt Resale as set forth in the Accredited Investor Letter.

(z)             No securities of the Issuer or the Company of the same class (within the meaning of Rule 144A under the Act) as the Notes are listed on a national securities exchange registered under Section 6 of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), or quoted in a U.S. automated inter-dealer quotation system.  No securities of the Issuer or the Company of the same class as the Notes have been offered, issued or sold by the Issuer or the Company or any of the Company’s Affiliates within the six-month period immediately prior to the date hereof.

(aa)                             None of the Issuer, the Company or any of their affiliates or other person acting on behalf of the Issuer or the Company has offered or sold the Notes by means of any general solicitation or general advertising within the meaning of Rule 502(c) under the Act or, with respect to Notes sold outside the United States to non-U.S. persons (as defined in Rule 902 under the Act), by means of any directed selling efforts within the meaning of Rule 902 under the Act, and the Issuer, the Company, any affiliate of the Company and any person acting on behalf of the Issuer or the Company have complied with and will implement the “offering restrictions” within the meaning of such Rule 902; provided , that no representation is made in this subsection with respect to the actions of the Initial Purchaser or anyone acting on its behalf.

(bb)          Each of the Company, each of its Subsidiaries and each ERISA Affiliate has fulfilled its obligations, if any, under the minimum funding standards of Section 302 of the United States Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”) with respect to each “pension plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA which the Company, any of its Subsidiaries or any ERISA Affiliate sponsors or maintains, or with respect to which it has (or within the last three years had) any obligation to make contributions, and each such plan is in compliance in all material respects with the presently applicable provisions of ERISA and the Internal Revenue Code of 1986, as amended (the “ Code ”).  None of the Company, any of its Subsidiaries or any ERISA Affiliate has incurred any unpaid liability to the Pension Benefit Guaranty Corporation (other than for the payment of premiums in the ordinary course) or to any such plan under Title IV of ERISA.  “ ERISA Affiliate ” means a corporation, trade or business that is, along with the Company or any of its Subsidiaries, a member of a controlled group of corporations or a controlled group