<PAGE>
EXECUTION COPY
ACTIVANT SOLUTIONS INC.
$120,000,000
Floating Rate Senior Notes due 2010
PURCHASE AGREEMENT
March 10, 2005
J.P. MORGAN SECURITIES INC.
DEUTSCHE BANK SECURITIES INC.
c/o J.P. Morgan Securities Inc.
270 Park Avenue, 5th floor
New York, New York 10017
Ladies and Gentlemen:
Activant
Solutions Inc., a Delaware corporation (the "Company"),
proposes,
subject to the terms and conditions stated
herein, to issue and sell (the
"Offering") $120,000,000 aggregate
principal amount of the Company's Floating
Rate Senior Notes due 2010 (the "Notes").
The Notes will be issued pursuant to
an indenture dated March 30, 2005 (the
"Indenture") between the Company, the
Guarantors named therein and Wells Fargo
Bank, N.A., as trustee (the "Trustee").
The Notes will initially be guaranteed on
an unsecured senior basis (the
"Guarantees," and together with the Notes,
the "Securities") by each of the
Company's direct and indirect subsidiaries
(the "Subsidiaries") identified on
Schedule II hereto (collectively, the
"Guarantors," and together with the
Company, the "Issuers". The Issuers hereby
confirm their agreement with J.P.
Morgan Securities Inc. and Deutsche Bank
Securities Inc. (each an "Initial
Purchaser", and together the "Initial
Purchasers") concerning the purchase of
the Securities from the Issuers by the
Initial Purchasers.
The Securities
will be offered and sold to the Initial Purchasers without
being registered under the Securities Act
of 1933, as amended (the "Securities
Act"), in reliance upon exemptions
therefrom. The Company has prepared a
preliminary offering memorandum dated
February 25, 2005 (the "Preliminary
Offering Memorandum") and will prepare a
final offering memorandum dated the
date hereof (the "Final Offering
Memorandum") setting forth information
concerning the Company, the Guarantors and
the Securities. Copies of the
Preliminary Offering Memorandum have been,
and copies of the Final Offering
Memorandum will be, delivered by the
Issuers to the Initial Purchasers pursuant
to the terms of this Agreement.
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Any references herein to the Preliminary
Offering Memorandum and the Final
Offering Memorandum shall be deemed to
include all amendments and supplements
thereto and any documents incorporated by
reference therein, unless otherwise
noted. The Issuers hereby confirm that they
have authorized the use of the
Preliminary Offering Memorandum and the
Final Offering Memorandum in connection
with the offering and resale of the
Securities by the Initial Purchasers in
accordance with Section 2.
Holders of the
Notes (including the Initial Purchasers and their direct and
indirect transferees) will be entitled to
the benefits of an Exchange and
Registration Rights Agreement substantially
in the form attached hereto as Annex
A (the "Registration Rights Agreement"),
pursuant to which the Company and the
Guarantors will agree to file with the
Securities and Exchange Commission (the
"Commission") (i) a registration statement
under the Securities Act (the
"Exchange Offer Registration Statement")
registering an issue of senior notes of
the Company (the "Exchange Notes") and
guarantees of the Guarantors (together
with the Exchange Notes, the "Exchange
Securities") which are identical in all
material respects to the Notes and the
Guarantees, respectively (except that the
Exchange Securities will not contain terms
with respect to transfer
restrictions), and (ii) under certain
circumstances, a shelf registration
statement pursuant to Rule 415 under the
Securities Act (the "Shelf Registration
Statement").
Concurrently
with the closing of the Offering, the Company intends to:
(i) purchase any and all of the outstanding capital stock of
Speedware
Corporation Inc.
("Speedware") tendered to the Company as of such date
pursuant to an
Offer to Purchase dated as of February 21, 2005 (the "Tender
Offer"), as
amended, supplemented and extended from time to time (the
"Speedware
Acquisition") and
(ii) amend its existing senior credit facility dated as of June
27,
2003 with
JPMorgan Chase Bank, N.A., as administrative agent, and a
syndicate of
banking and financial institutions party thereto (the "Credit
Facility") to
permit the Speedware Acquisition and the transactions related
thereto (the
"Credit Agreement Amendment" and together with the Offering
and the
Speedware Acquisition, the "Transactions").
The proceeds of
the Offering will be used to fund a portion of the purchase
price necessary to purchase all of the
issued and outstanding shares of capital
stock of Speedware and pay transaction fees
and expenses.
Capitalized
terms used but not defined herein shall have the meanings given
to such terms in the Final Offering
Memorandum.
1. Representations,
Warranties and Agreements of the Issuers. The Issuers
represent and warrant, jointly and
severally, to, and agree with, the Initial
Purchasers on
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the date hereof and the Closing Date (with
respect to those made at the Closing
Date, after giving effect to the
transactions contemplated by this Agreement)
that:
(a) The Preliminary Offering Memorandum, as of its date did not,
and
the Final
Offering Memorandum, as of its date and as of the Closing Date
(as defined in
Section 3), did not (or will not) contain any untrue
statement of a
material fact or omit to state a material fact necessary in
order to make
the statements therein, in the light of the circumstances
under which they
were made, not misleading; provided, however, that the
Issuers make no
representation or warranty as to information contained in
or omitted from
the Preliminary Offering Memorandum or the Final Offering
Memorandum in
reliance upon and in conformity with written information
relating to the
Initial Purchasers furnished to the Issuers by or on behalf
of the Initial
Purchasers specifically for use therein (the "Initial
Purchasers'
Information"). The parties hereto acknowledge and agree that,
for all purposes
of this Agreement, the Initial Purchasers' Information
consists solely
of the statements relating to the Initial Purchasers in the
third paragraph,
fifth and sixth sentences of the eighth paragraph, and
tenth paragraph
under the heading "Plan of distribution" in the Final
Offering
Memorandum.
(b) The Preliminary Offering Memorandum as of its date contained,
and
the Final
Offering Memorandum, as of its date and as of the Closing Date,
contained and
will contain all of the information that, if requested by a
prospective
purchaser of the Securities, would be required to be provided
to such
prospective purchaser pursuant to Rule 144A(d)(4) under the
Securities Act.
(c) Assuming the accuracy of the representations and warranties of
the
Initial
Purchasers contained in Section 2 and their compliance with the
agreements set
forth herein, it is not necessary, in connection with the
issuance and sale of
the Securities to the Initial Purchasers and the
offer, resale
and delivery of the Securities by the Initial Purchasers in
the manner
contemplated by this Agreement and the Final Offering
Memorandum, to
register the Securities under the Securities Act or to
qualify the
Indenture under the Trust Indenture Act of 1939, as amended
(the "Trust
Indenture Act").
(d) The Issuers and each of their respective subsidiaries have
been
duly organized
and are validly existing as corporations in good standing
under the laws
of their respective jurisdictions of incorporation, are duly
qualified to do
business and are in good standing as foreign corporations
in each
jurisdiction in which their respective ownership or lease of
property or the
conduct of their respective businesses requires such
qualification,
and have all power and authority necessary to own or hold
their respective
properties and to conduct the businesses in which they are
engaged, except
where the failure to so qualify or have such power or
authority would
not, singularly or in the aggregate, have a material
adverse effect
on the condition (financial or
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otherwise),
results of operations, business or prospects of the Issuers and
their respective
subsidiaries taken as a whole (a "Material Adverse
Effect").
(e) The authorized capital stock of the Company consists of
1,000
shares of common
stock, par value $.01 per share, and is owned by Activant
Solutions
Holdings Inc. ("Holding"). All of the outstanding 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 or
indirectly by the Company, free and clear of any lien, charge,
encumbrance,
security interest, restriction upon voting or transfer or any
other claim of
any third party (other than liens and security interests
created pursuant
to the Credit Facility, the related guarantees and
security
documents or any document or agreements contemplated thereby,
the
Indenture or
applicable law or as disclosed in the Support Agreement).
(f) The Issuers have all requisite corporate power and authority
to
execute and
deliver, to the extent each is a party thereto, this Agreement,
the Indenture,
the Registration Rights Agreement, the Credit Agreement
Amendment, the
support agreement dated January 24, 2005 among the Company,
Activant
Solutions Acquisition Co. Ltd. (the "Acquisition Co") and
Speedware (the
"Support Agreement"), the Securities and the Exchange
Securities
(collectively, the "Transaction Documents") and to perform
their
obligations
hereunder and thereunder.
(g) This Agreement has been duly authorized, executed and delivered
by
the Issuers.
(h) The Registration Rights Agreement has been duly authorized by
the
Issuers, and,
when duly executed and delivered in accordance with its terms
by each of the
parties thereto, will constitute a valid and legally binding
agreement of the
Issuers, enforceable against the Issuers in accordance
with its terms,
except (i) to the extent that such enforceability may be
limited by
applicable bankruptcy, insolvency, reorganization, moratorium
and other
similar laws affecting creditors' rights generally and by
general
equitable
principles (whether considered in a proceeding in equity or at
law) and (ii) to
the extent that the enforceability of rights to
indemnification
and contribution thereunder may be limited by federal or
state securities
laws or regulations or the public policy underlying such
laws or
regulations.
(i) The Indenture has been duly authorized by the Issuers, to
the
extent each is a
party thereto, and, when duly executed and delivered in
accordance with
its terms by each of the parties thereto, will constitute a
valid and
legally binding agreement of the Issuers enforceable against
the
Issuers in
accordance with its terms, except to the extent that such
enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization,
moratorium and other similar laws affecting creditors'
rights
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generally and by
general equitable principles (whether considered in a
proceeding in
equity or at law).
(j) The Notes have
been duly authorized by the Company and, when duly
executed,
authenticated, issued and delivered as provided in the
Indenture
and paid for as
provided herein, will be duly and validly issued and
outstanding and
will constitute valid and legally binding obligations of
the Company
entitled to the benefits of the Indenture and enforceable
against the
Company in accordance with their terms, except to the extent
that such
enforceability may be limited by applicable bankruptcy,
insolvency,
reorganization, moratorium and other similar laws affecting
creditors'
rights generally and by general equitable principles (whether
considered in a
proceeding in equity or at law).
(k) The Guarantees have been duly authorized by each of the
Guarantors
and when duly
executed and delivered as provided in the Indenture and when
the Notes are
paid for and delivered as provided herein, will be duly and
validly issued
and outstanding and will constitute valid and legally
binding
obligations of each Guarantor entitled to the benefits of the
Indenture and
enforceable against each such Guarantor in accordance with
their terms,
except to the extent that such enforceability may be limited
by applicable
bankruptcy, insolvency, reorganization, moratorium and other
similar laws
affecting creditors' rights generally and by general equitable
principles
(whether considered in a proceeding in equity or at law).
(l) The Exchange Securities have been duly authorized by the
Issuers
to the extent
each will be an obligor thereunder, and, when duly executed,
authenticated,
issued and delivered as provided in the Indenture and the
Registration
Rights Agreement, will be duly and validly issued and
outstanding and
will constitute valid and legally binding obligations of
the Issuers
entitled to the benefits of the Indenture and enforceable
against the
Issuers in accordance with their terms, except to the extent
that such
enforceability may be limited by applicable bankruptcy,
insolvency,
reorganization, moratorium and other similar laws affecting
creditors'
rights generally and by general equitable principles (whether
considered in a
proceeding in equity or at law).
(m) The Credit Agreement Amendment has been duly authorized,
executed
and delivered by
the Company and, when duly executed and delivered in
accordance with
its terms by each of the other parties thereto, will
constitute a
valid and legally binding agreement of the Company,
enforceable
against the Company in accordance with its terms, except to the
extent that such
enforceability may be limited by applicable bankruptcy,
insolvency,
reorganization, moratorium and other similar laws affecting
creditors'
rights generally and by general equitable principles (whether
considered in a
proceeding in equity or at law), other than set off
provisions
contained in the Credit Agreement.
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(n) The Support Agreement has been duly authorized by the Company
and
the Acquisition
Co and constitutes a valid and legally binding agreement of
the Company and
Acquisition Co, enforceable against the Company and
Acquisition Co
in accordance with its terms, except (i) to the extent that
such
enforceability may be limited by applicable bankruptcy,
insolvency,
reorganization,
moratorium and other similar laws affecting creditors'
rights generally
and by general equitable principles (whether considered in
a proceeding in
equity or at law) and (ii) to the extent that the
enforceability
of rights to indemnification and contribution thereunder may
be limited by
federal or state securities laws or regulations or the public
policy
underlying such laws or regulations.
(o) The execution, delivery and performance by the Issuers and
their
respective
subsidiaries of each of the Transaction Documents, to the
extent
each is a party
thereto, the issuance, authentication, sale and delivery of
the Securities
by the Issuers and compliance by such Issuers with the terms
thereof and the
consummation by the Issuers and their respective
subsidiaries, as
applicable, of the transactions contemplated by the
Transaction
Documents do not and will not conflict with or result in a
breach or
violation of any of the terms or provisions of, or constitute a
default under,
or, except as permitted by the Transaction Documents, result
in the creation
or imposition of any lien, charge or encumbrance upon any
property or
assets of the Issuers or any of their respective subsidiaries
pursuant to, any
indenture, mortgage, deed of trust, loan agreement or
other agreement
or instrument to which the Issuers or any of their
respective
subsidiaries are parties or by which the Issuers or any of
their
respective
subsidiaries are bound or to which any of the property or
assets
of the Issuers
or any of their respective subsidiaries are subject, except
for any such
conflict, breach, violation, default, lien, charge or
encumbrance that
has been waived and except for any such conflict, breach,
violation,
default, lien, charge or encumbrance that could not, singly or
in the
aggregate, reasonably be expected to have a Material Adverse
Effect
or any material
adverse effect on the ability of the Issuers to perform
their respective
obligations under the Transaction Documents; nor will such
actions result
in any violation of the provisions of the charter or bylaws
of the Issuers
or any of their respective subsidiaries or result in any
violation of any
statute or any order, rule or regulation of any court or
arbitrator or
governmental agency or body having jurisdiction over the
Issuers or any
of their respective subsidiaries or any of their properties
or assets except
such violation of any statute or any order, rule or
regulation that
could not, singly or in the aggregate, reasonably be
expected to have
a Material Adverse Effect; and, except for such consents,
approvals,
authorizations, registrations or qualifications which have been
obtained or as
may be required under (i) applicable Blue Sky or securities
laws in
connection with the purchase and resale of the Securities by
the
Initial
Purchasers, (ii) the Trust Indenture Act in connection with the
Exchange
Securities or (iii) the Securities Act and state Blue Sky laws
or
securities laws
in connection with the actions contemplated by the
Registration
Rights Agreement; no material consent, approval,
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authorization or
order of, or filing or registration with, any such court
or arbitrator or
governmental agency or body is required for the execution,
delivery and
performance by the applicable Issuers of each of the
Transaction
Documents, the issuance, authentication, sale and delivery by
the Issuers of
the Securities and compliance by the Issuers with the terms
thereof and the
consummation by the Issuers of the transactions
contemplated by
the Transaction Documents, except for such consents,
approvals, authorizations,
filings, registrations or qualifications as may
be required to
be obtained or made under the Securities Act and applicable
state securities
laws as provided in the Registration Rights Agreement.
(p) Each Transaction Document, to the extent described in the
Final
Offering
Memorandum, will conform in all material respects to the
description of
such Transaction Document contained in the Final Offering
Memorandum.
(q) (i) Ernst & Young LLP are independent public accountants
with
respect to the
Issuers and their respective subsidiaries within the meaning
of Rule 101 of
the Code of Professional Conduct of the American Institute
of Certified
Public Accountants ("AICPA") and its interpretations and
rulings
thereunder, (ii) the historical financial statements (including
the
related notes)
contained in the Preliminary Offering Memorandum and the
Final Offering
Memorandum have been prepared in conformity with generally
accepted
accounting principles consistently applied throughout the
periods
covered thereby
and fairly present, in all material respects, the financial
condition and
the results of operations of the entities purported to be
covered thereby
for the respective periods indicated except as otherwise
disclosed
therein and (iii) the assumptions underlying the pro forma
financial
information included in the Preliminary Offering Memorandum and
the Final
Offering Memorandum include all assumptions required to give
effect to the
transactions and events described in the notes thereto, are
reasonable and
are set forth in the Preliminary Offering Memorandum and the
Final Offering
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 Preliminary
Offering Memorandum and the Final Offering Memorandum. The
financial
information contained in the Preliminary Offering Memorandum
and
the Final
Offering Memorandum under the headings "Summary unaudited pro
forma condensed
combined financial and operating data," "Capitalization,"
"Selected
historical consolidated financial data of the Company" and
"Management's
discussion and analysis of financial condition and results of
operations" is
derived from the accounting records of the entities
purported to be
covered thereby and fairly present in all material respects
the information
purported to be shown thereby.
(r) To the Company's knowledge, (i) KPMG LLP are independent
public
accountants with
respect to Speedware and its respective subsidiaries
within the
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meaning of the
Code of Ethics of the Ordre des comptables agrees du Quebec
and within the
meaning of the Securities Act and the applicable rules and
regulations
thereunder and (ii) the historical financial statements of
Speedware,
including the notes thereto, as contained in the Preliminary
Offering
Memorandum and the Final Offering Memorandum were prepared in
accordance with
generally accepted accounting principles in Canada applied
on a basis
consistent with prior periods, except as noted therein, are
correct in all
material respects, are complete and present fairly the
assets,
liabilities (whether accrued, absolute, contingent or
otherwise)
and financial
condition of Speedware and its subsidiaries on a consolidated
basis as at the
respective dates thereof and the results of operations of
Speedware and
its subsidiaries on a consolidated basis for the respective
periods covered
thereby.
(s) There are no legal or governmental proceedings pending to
which
the Issuers or
any of their respective subsidiaries is a party or of which
any property or
assets of the Issuers or any of their respective
subsidiaries or
affiliates is the subject which, singularly or in the
aggregate, if
determined adversely to the Issuers or any of their
respective
subsidiaries or affiliates, could reasonably be expected to
have
a Material
Adverse Effect; and to the best knowledge of the Issuers no
such
proceedings are
threatened or contemplated by governmental authorities or
threatened by
others.
(t) No injunction, restraining order or order of any nature by
any
federal or state
court of competent jurisdiction has been issued with
respect to the
Issuers or any of their respective subsidiaries which would
prevent or
suspend the issuance or sale of the Securities, the use of the
Final Offering
Memorandum in any jurisdiction or the consummation of the
Tender Offer or
any other transaction related thereto; no action, suit or
proceeding is
pending against or, to the best knowledge of the Issuers
threatened
against or affecting the Issuers or any of their respective
subsidiaries
before any court or arbitrator or any governmental agency,
body or
official, domestic or foreign, which could reasonably be
expected
to interfere
with or adversely affect the issuance of the Securities or the
consummation of
the Tender Offer or any other transaction related thereto
or in any manner
draw into question the validity or enforceability of any
of the
Transaction Documents or any action taken or to be taken
pursuant
thereto.
(u) None of the Issuers nor any of their respective subsidiaries
is
(i) in violation
of its charter or bylaws, (ii) in default, and no event
has occurred
which, with notice or lapse of time or both, would constitute
such a default,
in the due performance or observance of any term, covenant
or condition
contained in any material indenture, mortgage, deed of trust,
loan agreement
or other material agreement or instrument to which it is a
party or by
which it is bound or to which any of its property or assets is
subject which
could reasonably be expected to have a Material Adverse
Effect or (iii)
in violation of any applicable law, ordinance, court
decree,
governmental rule or
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regulation to
which it or its material property or assets may be subject
which could
reasonably be expected to have a Material Adverse Effect.
(v) The Issuers and each of their respective subsidiaries possess
all
licenses,
orders, certificates, authorizations, approvals and permits
issued by, and
have made all declarations, applications, reports,
instruments,
information and filings with, the appropriate federal, state
or foreign
regulatory agencies or bodies that are necessary or desirable
for the
ownership of their respective properties or the conduct of
their
respective
businesses as described in the Final Offering Memorandum and
such
declarations, applications, reports, instruments, information
and
filings are
true, correct and complete in all material respects, except
where the
failure to possess or make the same would not, singularly or in
the aggregate,
have a Material Adverse Effect, and neither any of the
Issuers nor any
of their respective subsidiaries has received notification
of any
revocation or modification of any such license, certificate,
authorization or
permit that is generally renewable in the ordinary course
or has any
reason to believe that any such license, certificate,
authorization or
permit will not be renewed in the ordinary course.
(w) None of the Issuers or any of their respective subsidiaries
(provided that
the Issuers make no representation as to Speedware and its
subsidiaries on
the Closing Date) is an open-end investment company, unit
investment trust
or face-amount certificate company that is or is required
to be registered
under Section 8 of the United States Investment Company
Act of 1940, as
amended (the "Investment Company Act"), nor are any of them
a closed-end
investment company required to be registered, but not
registered,
thereunder; and none of the Issuers is and, after giving effect
to the offering
and sale of the Securities and the application of the
proceeds thereof
as described in the Final Offering Memorandum, none of the
Issuers will be,
an "investment company" as defined in the Investment
Company Act.
(x) The Issuers and each of their respective subsidiaries maintain
a
system of
internal accounting controls sufficient to provide reasonable
assurance 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.
(y) The Issuers and each of their respective subsidiaries have
insurance
covering their respective properties, operations, personnel and
businesses,
which insurance is in amounts and insures against such losses
and risks as are
in the Issuers' opinion adequate to protect the Issuers
and their
respective subsidiaries and their
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respective
businesses. None of the Issuers or any of their respective
subsidiaries
have received notice from any insurer or agent of such insurer
that capital
improvements or other expenditures are required or necessary
to be made in
order to continue such insurance.
(z) The Issuers and each of their respective subsidiaries own
or
possess adequate
rights to use all material patents, patent applications,
trademarks,
service marks, trade names, trademark registrations, service
mark
registrations, copyrights, licenses and know-how (including
trade
secrets and
other unpatented and/or unpatentable proprietary or
confidential
information, systems or procedures) necessary for the conduct
of their
respective businesses as described in the Final Offering
Memorandum; and
the conduct of their respective businesses does not
conflict in any
material respect with, and the Issuers and their respective
subsidiaries
have not received any notice of any claim of conflict with,
any such rights
of others.
(aa) The Issuers and each of their respective subsidiaries have
good
and marketable
title in fee simple to, or have valid rights to lease or
otherwise use,
all items of real and personal property which are material
to the business
of the Issuers and their respective subsidiaries, taken as
a whole, in each
case free and clear of all liens, encumbrances and defects
other than (i)
liens and encumbrances granted pursuant to the Credit
Facility and
(ii) liens, encumbrances and defects that do not materially
interfere with
the use made and proposed to be made of such property by the
Issuers and
their respective subsidiaries or could not reasonably be
expected to have
a Material Adverse Effect.
(bb) No labor disturbance by or dispute with the employees of
the
Issuers or any
of their respective subsidiaries exists or, to the best
knowledge of the
Issuers is imminent, which could reasonably be expected to
have a Material
Adverse Effect.
(cc) There has been no storage, generation, transportation,
handling,
treatment,
disposal, discharge, emission or other release or threatened
release of any
kind of toxic or other wastes or other hazardous substances
by, due to or
caused by the Issuers or any of their respective subsidiaries
(or, to the best
knowledge of the Issuers, any other entity (including any
predecessor) for
whose acts or omissions the Issuers or any of their
respective
subsidiaries are or could reasonably be expected to be liable)
upon any
property now or previously owned or leased by the Issuers or
any
of their
respective subsidiaries, or upon any other property, in
violation
of any statute
or any ordinance, rule, regulation, order, judgment, decree
or permit or
which would, under any statute or any ordinance, rule
(including rule
of common law), regulation, order, judgment, decree or
permit, give
rise to any liability except for any violation or liability
which would not
have, singularly or in the aggregate with all such
violations and
liabilities, a Material Adverse Effect; and there has been
no disposal,
discharge, emission or other release of any kind onto such
property or into
the environment
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surrounding such
property of any toxic or other wastes or other hazardous
substances with
respect to which the Issuers have knowledge, except for any
such disposal,
discharge, emission or other release of any kind which would
not have,
singularly or in the aggregate with all such disposal,
discharge,
emission and
other release, a Material Adverse Effect.
(dd) 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(b) of ERISA
(other than
events with respect to which the 30-day notice requirement
under Section
4043 of ERISA has been waived) has occurred with respect to
any employee
benefit plan of the Issuers or any of their respective
subsidiaries
which could reasonably be expected to have a Material Adverse
Effect; each
such employee benefit plan is in compliance in all material
respects with
applicable law, including ERISA and the Code; the Issuers and
each of their
respective subsidiaries have not incurred and do not expect
to incur
liability under Title IV of ERISA with respect to the
termination
of, or
withdrawal from, any pension plan for which the Issuers or any
of
their respective
subsidiaries would have any liability; and each such
pension plan
that is intended to be qualified under Section 401(a) of the
Code is so
qualified in all material respects and nothing has occurred,
whether by
action or by failure to act, which could reasonably be expected
to cause the
loss of such qualification.
(ee) On the Closing Date, the Company and its subsidiaries taken as
a
whole (after
giving effect to the Transactions), will be Solvent. As used
in this
paragraph, the term "Solvent" means, with respect to a
particular
date, that on
such date (i) the present fair market value (or present fair
saleable value)
of the assets of the Company and its subsidiaries is not
less than the
total amount of the liabilities of the Company and its
subsidiaries on
their total existing debts and liabilities (including
contingent
liabilities); (ii) the Company and its subsidiaries are able to
realize upon
their assets and pay their 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 Securities
as contemplated by this Agreement and the Final Offering
Memorandum, the
Company and its subsidiaries are not incurring debts or
liabilities
beyond their ability to pay as such debts and liabilities
mature; (iv) the
Company and its subsidiaries are not engaged in any
business or
transaction, and does not propose to engage in any business or
transaction, for
which their property would constitute unreasonably small
capital after
giving due consideration to the prevailing practice in the
industry in
which the Company is engaged; and (v) the Company and its
subsidiaries are
not otherwise insolvent under applicable federal or state
laws.
<PAGE>
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(ff) No holder of securities of the Issuers or any of their
respective
subsidiaries
will be entitled to have such securities registered under the
registration
statements required to be filed by the Issuers pursuant to the
Registration
Rights Agreement, to the extent each is a party thereto, other
than as
expressly permitted thereby or that has been waived.
(gg) No forward-looking statement (within the meaning of Section
27A
of the
Securities Act and Section 21E of the Exchange Act) contained in
the
Preliminary
Offering Memorandum and the Final Offering Memorandum has been
made or
reaffirmed without a reasonable basis or has been disclosed
other
than in good
faith.
(hh) Nothing has come to the attention of the Company that has
caused
the Company to
believe that the statistical and market-related data
included in the
Preliminary Offering Memorandum and the Final Offering
Memorandum is
not based on or derived from sources that are reliable and
accurate in all
material respects.
(ii) None of the proceeds of the sale of the Securities will be
used,
directly or
indirectly, for the purpose of purchasing or carrying any
margin security,
for the purpose of reducing or retiring any indebtedness
which was
originally incurred to purchase or carry any margin security or
for any other
purpose which might cause any of the Securities to be
considered a
"purpose credit" within the meanings of Regulation T, U or X
of the Board of
Governors of the Federal Reserve System.
(jj) Except as disclosed in the Final Offering Memorandum, neither
the
Issuers nor any
of their respective subsidiaries is a party to any contract
agreement or
understanding with any person that would give rise to a valid
claim against
the Issuers or the Initial Purchasers for a brokerage
commission,
finders' fee or like payment in connection with the offering
and sale of the
Securities.
(kk) The Notes satisfy the eligibility requirements of Rule
144A(d)(3)
under the
Securities Act.
(ll)
Neither any of the Issuers nor any Affiliate (as defined in
Rule
501(b) of
Regulation D under the Securities Act ("Regulation D")) has
directly, or
through any agent (provided that no representation is made as
to the Initial
Purchasers or any Person acting on its behalf): (i) sold,
offered for
sale, solicited offers to buy or otherwise negotiated in
respect of any
"security" (as defined in the Securities Act) which sale,
offer,
solicitation or negotiation is or will be integrated with the
sale
of the
Securities in a manner that would require the registration under
the
Securities Act
of the Securities or (ii) engaged in any form of general
solicitation or
general advertising (as those terms are used in Regulation
D) in connection
with the offering of the Securities.
<PAGE>
-13-
(mm) When the Securities are delivered pursuant to this
Agreement,
none of the
Securities will be of the same class (within the meaning of
Rule 144A under
the Securities Act) as securities of the Issuers or any of
their respective
subsidiaries that are listed on a national securities
exchange
registered under Section 6 of the Exchange Act or that are
quoted
in a United States
automated inter-dealer quotation system.
(nn) None of the Issuers or any of their respective Affiliates
(as
defined in Rule
501(b) of Regulation D), nor any person acting on behalf of
any of them
(other than the Initial Purchasers) (i) has, within the
six-month period
prior to the date hereof, offered or sold in the United
States or to any
U.S. person (as such terms are defined in Regulation S
under the
Securities Act ("Regulation S")) the Securities or any security
of the same
class or series as the Securities (A) in the United States by
means of any
form of general solicitation or general advertising within the
meaning of Rule
502(c) under the Securities Act or (B) with respect to any
such securities
sold in reliance on Rule 903 of Regulation S, by means of
any directed
selling efforts within the meaning of Rule 902(b) of
Regulation S.
The Issuers and their respective affiliates, and any person
acting on behalf
of any of them (other than the Initial Purchasers) have
complied and
will comply with the offering restrictions requirement of
Regulation S.
The Issuers have not entered and will not enter into any
contractual
arrangement with respect to the distribution of the Securities
except for this
Agreement and the Registration Rights Agreement, to the
extent each is
party thereto.
(oo) Since December 31, 2004, except as set forth in the Final
Offering
Memorandum (i) both before and after giving effect to the
Transactions,
there has been no material adverse change or any development
involving a
prospective material adverse change in the condition, financial
or otherwise, or
in the earnings, business affairs, management or business
prospects of the
Issuers, whether or not arising in the ordinary course of
business, (ii)
none of the Issuers, nor any of their respective
subsidiaries has
incurred any liability or obligation, direct or indirect,
absolute or
contingent, other than in the ordinary course of business,
which would,
singly or in the aggregate, have a Material Adverse Effect,
(iii)with the
exception of the Support Agreement, neither any of the
Issuers nor any
of their respective subsidiaries has entered into any
material
transaction other than in the ordinary course of business and
(iv)
there has not
been any change in the capital stock or long-term debt of any
of the Issuers
or any of their respective subsidiaries, or any dividend or
distribution of
any kind declared, paid or made by any of the Issuers or
