<PAGE>
EXHIBIT 1.1
J.P. MORGAN SECURITIES INC.
$300,000,000
TRINITY INDUSTRIES, INC.
6 1/2% Senior Notes due 2014
Purchase Agreement
March 5, 2004
J.P. Morgan Securities Inc.
As Representative of the
several Initial Purchasers listed
in Schedule 1 hereto
c/o J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
Trinity Industries, Inc., a Delaware corporation (the
"Company"),
proposes to issue and sell to the several
Initial Purchasers listed in Schedule
1 hereto (the "Initial Purchasers"), for
whom you are acting as representative
(the "Representative"), $300,000,000
principal amount of its 6 1/2% Senior Notes
due 2014 (the "Securities"). The Securities
will be issued pursuant to an
Indenture to be dated as of March 10, 2004
(the "Indenture") among the Company,
the guarantors listed in Schedule 2 hereto
(the "Guarantors") and Wells Fargo
Bank, National Association, as trustee (the
"Trustee"), and will be guaranteed
on an unsecured senior basis by each of the
Guarantors (the "Guarantees").
The Securities will be sold to the Initial Purchasers without
being
registered under the Securities Act of
1933, as amended (the "Securities Act"),
in reliance upon an exemption therefrom.
The Company has prepared a preliminary
offering memorandum dated February 26, 2004
(the "Preliminary Offering
Memorandum") and will prepare an offering
memorandum dated the date hereof (the
"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 Offering
Memorandum will be, delivered by the
Company to the Initial Purchasers pursuant
to the terms of this Agreement. The
Company hereby confirms that it has
authorized the use of the Preliminary
Offering Memorandum and the Offering
Memorandum in connection with the offering
and resale of the Securities by the Initial
Purchasers in the manner
contemplated by this Agreement. Capitalized
terms used but not
<PAGE>
defined herein shall have the meanings
given to such terms in the Offering
Memorandum. References herein to the
Preliminary Offering Memorandum and the
Offering Memorandum shall be deemed to
refer to and include any amendments and
supplements thereto and any document
incorporated by reference therein.
Holders of the Securities (including the Initial Purchasers and
their
direct and indirect transferees) will be
entitled to the benefits of a
Registration Rights Agreement, to be dated
the Closing Date (as defined below)
and substantially in the form attached
hereto as Exhibit A (the "Registration
Rights Agreement"), pursuant to which the
Company and the Guarantors will agree
to file one or more registration statements
with the Securities and Exchange
Commission (the "Commission") providing for
the registration under the
Securities Act of the Securities or the
Exchange Securities referred to (and as
defined) in the Registration Rights
Agreement.
Concurrently with the purchase and sale of the Securities, the
Company
is amending and restating its existing
$425.0 million senior secured credit
facilities (the "Existing Credit
Facilities") to provide for a senior secured
revolving credit facility in an aggregate
amount of $250.0 million (the "Amended
and Restated Credit Facilities"). The
Amended and Restated Credit Facilities
will be guaranteed on a senior basis by
each of the Guarantors and will be
secured by a lien on certain of the assets
of the Company and its subsidiaries.
The Amended and Restated Credit Facilities
will be governed by an agreement
dated as of the Closing Date by among the
Company, the Guarantors, the lenders
party thereto, JPMorgan Chase Bank, as
administrative agent, and Dresdner Bank
AG, New York, Grand Cayman Branches, and
The Royal Bank of Scotland plc, as
syndication agents (together with the
related documents thereto, including,
without limitation, any guarantee
agreements and security documents, the
"Amended and Restated Credit Agreement"
and, together with this Agreement, the
Securities, the Guarantees, the Exchange
Securities (including the related
guarantees), the Indenture and the
Registration Rights Agreement, the
"Transaction Documents").The Company hereby
confirms its agreement with the
several Initial Purchasers concerning the
purchase and resale of the Securities,
as follows:
1.
Purchase and Resale of the Securities. (a) The Company agrees
to issue and sell the Securities to the
several Initial Purchasers as provided
in this Agreement, and each Initial
Purchaser, on the basis of the
representations, warranties and agreements
set forth herein and subject to the
conditions set forth herein, agrees,
severally and not jointly, to purchase from
the Company the respective principal amount
of Securities set forth opposite
such Initial Purchaser's name in Schedule 1
hereto at a price equal to 98.25% of
the principal amount thereof plus accrued
interest, if any, from March 10, 2004
to the Closing Date. The Company will not
be obligated to deliver any of the
Securities except upon payment for all the
Securities to be purchased as
provided herein.
(b) The
Company understands that the Initial Purchasers intend to
offer the Securities for resale on the
terms set forth in the Offering
Memorandum. Each Initial Purchaser,
severally and not jointly, represents,
warrants and agrees that:
2
<PAGE>
(i) it is
either (x) a qualified institutional buyer
within the meaning of Rule 144A under the Securities Act (a "QIB")
and
an accredited investor within the meaning of Rule 501(a) under
the
Securities Act or (y) not a U.S. person within the meaning of
Rule
902(k) of Regulation S under the Securities Act ("Regulation
S");
(ii)
neither it nor and any of its affiliates referred to
in Section 1(d) below has solicited offers for, or offered or sold,
or
will solicit offers for, or offer or sell, the Securities by means
of
any form of general solicitation or general advertising within
the
meaning of Rule 502(c) of Regulation D under the Securities Act
("Regulation D") or in any manner involving a public offering
within
the meaning of Section 4(2) of the Securities Act; and
(iii)
neither it nor and any of its affiliates referred to
in Section 1(d) below has solicited offers for, or offered or sold,
or
will solicit offers for, or offer or sell, the Securities as part
of
their initial offering except:
(A) within the
United States to persons whom it
reasonably believes to be QIBs in transactions pursuant to
Rule 144A under the Securities Act ("Rule 144A") and in
connection with each such sale, it has taken or will take
reasonable steps to ensure that the purchaser of the
Securities is aware that such sale is being made in reliance
on Rule 144A; or
(B) in
accordance with the restrictions set
forth in Annex A hereto.
(c) Each
Initial Purchaser acknowledges and agrees that the
Company and, for purposes of the opinions
to be delivered to the Initial
Purchasers pursuant to Sections 5(f) and
5(g), counsel for the Company and
counsel for the Initial Purchasers,
respectively, may rely upon the accuracy of
the representations and warranties of the
Initial Purchasers, and compliance by
the Initial Purchasers with their
agreements, contained in paragraph (b) above
(including Annex A hereto), and each
Initial Purchaser hereby consents to such
reliance.
(d) The
Company acknowledges and agrees that the Initial
Purchasers may offer and sell Securities to
or through any affiliate of an
Initial Purchaser and that any such
affiliate may offer and sell Securities
purchased by it to or through any Initial
Purchaser.
2.
Payment and Delivery. (a) Payment for and delivery of the
Securities will be made at the offices of
Cahill Gordon & Reindel LLP at 10:00
A.M., New York City time, on March 10,
2004, or at such other time or place on
the same or such other date, not later than
the fifth business day thereafter,
as the Representative and the Company may
agree upon in writing. The time and
date of such payment and delivery is
referred to herein as the "Closing Date."
(b) Payment
for the Securities shall be made by wire transfer in
immediately available funds to the
account(s) specified by the Company to the
Representative against
3
<PAGE>
delivery to the nominee of The Depository
Trust Company, for the account of the
Initial Purchasers, of one or more global
notes representing the Securities
(collectively, the "Global Note"), with any
transfer taxes payable in connection
with the sale of the Securities duly paid
by the Company. The Global Note will
be made available for inspection by the
Representative not later than 1:00 P.M.,
New York City time, on the business day
prior to the Closing Date.
3.
Representations and Warranties of the Company and the
Guarantors. The Company and the Guarantors
jointly and severally represent and
warrant to each Initial Purchaser that:
(a) Offering
Memorandum. The Preliminary Offering Memorandum, as
of its date, did not, and the Offering
Memorandum, in the form first used by the
Initial Purchasers to confirm sales of the
Securities and as of the Closing
Date, 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 Company and the
Guarantors make no representation or warranty
with respect to any statements or omissions
made in reliance upon and in
conformity with information relating to any
Initial Purchaser furnished to the
Company in writing by such Initial
Purchaser through the Representative
expressly for use in the Preliminary
Offering Memorandum or the Offering
Memorandum.
(b)
Incorporated Documents. The documents incorporated by
reference in the Preliminary Offering
Memorandum and the Offering Memorandum,
when filed with the Commission, conformed
or will conform, as the case may be,
in all material respects to the
requirements of the Exchange Act and the rules
and regulations of the Commission
thereunder, and did not and will not contain
any untrue statement of a material fact or
omit to state a material fact
required to be stated therein or necessary
in order to make the statements
therein, in the light of the circumstances
under which they were made, not
misleading.
(c) Financial
Statements. The financial statements and the related
notes thereto included or incorporated by
reference in the Preliminary Offering
Memorandum and the Offering Memorandum
present fairly in all material respects
the financial position of the Company and
its subsidiaries as of the dates
indicated and the results of their
operations and the changes in their cash
flows for the periods specified; such
financial statements have been prepared in
conformity with generally accepted
accounting principles applied on a consistent
basis throughout the periods covered
thereby; and the other financial
information included or incorporated by
reference in the Preliminary Offering
Memorandum and the Offering Memorandum has
been derived from the accounting
records of the Company and its subsidiaries
and presents fairly the information
shown thereby.
(d) No
Material Adverse Change. Since the date of the most recent
financial statements of the Company
included or incorporated by reference in the
Preliminary Offering Memorandum and the
Offering Memorandum, (i) there has not
been any change in the
4
<PAGE>
capital stock (other than pursuant to the
exercise of stock options authorized
and issued on or prior to the date hereof)
or long-term debt of the Company or
any of its subsidiaries, or any dividend or
distribution of any kind declared,
set aside for payment, paid or made by the
Company on any class of capital
stock, or any material adverse change, or
any development involving a
prospective material adverse change, in or
affecting the business, properties,
management, financial position, results of
operations or prospects of the
Company and its subsidiaries taken as a
whole; (ii) neither the Company nor any
of its subsidiaries has entered into any
transaction or agreement that is
material to the Company and its
subsidiaries taken as a whole or incurred any
liability or obligation, direct or
contingent, that is material to the Company
and its subsidiaries taken as a whole; and
(iii) neither the Company nor any of
its subsidiaries has sustained any material
loss or interference with its
business from fire, explosion, flood or
other calamity, whether or not covered
by insurance, or from any labor disturbance
or dispute or any action, order or
decree of any court or arbitrator or
governmental or regulatory authority,
except with respect to clauses (i) through
(iii), as otherwise disclosed in the
Preliminary Offering Memorandum and the
Offering Memorandum.
(e)
Organization and Good Standing. The Company and each of its
Significant Subsidiaries have been duly
incorporated or otherwise organized and
are validly existing and in good standing
under the laws of their respective
jurisdictions of organization, are duly
qualified to do business and are in good
standing 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 be so qualified
or have such power or authority
would not, individually or in the
aggregate, have a material adverse effect on
the business, properties, management,
financial position, results of operations
or prospects of the Company and its
subsidiaries taken as a whole or on the
performance by the Company and the
Guarantors of their obligations under the
Securities and the Guarantees (a "Material
Adverse Effect"). As used herein
"Significant Subsidiary" means (x) each of
the Guarantors, (y) each subsidiary
of the Company that is a "significant
subsidiary" under Rule 1-02(w)(2) of
Regulation S-X under the Exchange Act
(substituting five percent for 10 percent
in the test used therein) and (z) each of
Trinity Rail Leasing I L.P., Trinity
Rail Leasing Trust II and Trinity Rail
Leasing III L.P.; provided that each of
Administradora Especializada, S. de R.L. de
C.V., Grupo Tatsa, S. de R.L. de
C.V., Trinity Industries de Mexico, S. de
R.L. de C.V. and Servicios
Corporativos Tatsa, S. de R.L. de C.V.
(collectively, the "Mexican
Subsidiaries") shall constitute Significant
Subsidiaries as defined herein
solely for purposes of Sections 3(f), (s)
and (t). The Company does not own or
control, directly or indirectly, any entity
that is a "significant subsidiary"
under Rule 1-02(w)(2) of Regulation S-X
under the Exchange Act (substituting
five percent for 10 percent in the test
used therein) other than the Mexican
Subsidiaries and certain of the
Guarantors.
(f)
Capitalization. The Company has an authorized capitalization
as set forth in the Preliminary Offering
Memorandum and the Offering Memorandum
under the heading "Capitalization"; and all
the outstanding shares of capital
stock or other equity interests of each
Significant Subsidiary of the Company
have been duly and validly authorized and
issued, are
5
<PAGE>
fully paid and non-assessable (except, in
the case of any foreign subsidiary,
for directors' qualifying shares) and are
owned directly or indirectly by the
Company, free and clear of any lien,
charge, encumbrance, security interest,
restriction on voting or transfer or any
other claim of any third party other
than any liens, encumbrances and claims
arising under the Amended and Restated
Credit Agreement.
(g) Due
Authorization. The Company and each of the Guarantors have
full right, power and authority to execute
and deliver each of the Transaction
Documents to the extent each is a party
thereto and to perform their respective
obligations thereunder; and all action
required to be taken for the due and
proper authorization, execution and
delivery of each of the Transaction
Documents and the consummation of the
transactions contemplated thereby has been
(or, in the case of the Amended and
Restated Credit Agreement, will on the
Closing Date have been) duly and validly
taken.
(h) The
Indenture. The Indenture has been duly authorized by the
Company and each of the Guarantors 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
Company and each of the Guarantors
enforceable against the Company and each of
the Guarantors in accordance with
its terms, except as enforceability may be
limited by applicable bankruptcy,
insolvency or similar laws affecting the
enforcement of creditors' rights
generally or by equitable principles
relating to enforceability (collectively,
the "Enforceability Exceptions"); and on
the Closing Date, the Indenture will
conform in all material respects to the
requirements of the Trust Indenture Act
of 1939, as amended (the "Trust Indenture
Act"), and the rules and regulations
of the Commission applicable to an
indenture that is qualified thereunder.
(i) The
Securities and the Guarantees. The Securities 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
enforceable against the Company in accordance
with their terms, subject to the
Enforceability Exceptions, and will be entitled
to the benefits of the Indenture; and the
Guarantees have been duly authorized
by each of the Guarantors and, when the
Securities have been duly executed,
authenticated, issued and delivered as
provided in the Indenture and paid for as
provided herein, will be valid and legally
binding obligations of each of the
Guarantors, enforceable against each of the
Guarantors in accordance with their
terms, subject to the Enforceability
Exceptions, and will be entitled to the
benefits of the Indenture.
(j) The
Exchange Securities. On the Closing Date, the Exchange
Securities (including the related
guarantees) will have been duly authorized by
the Company and each of the Guarantors and,
when duly executed, authenticated,
issued and delivered as contemplated by the
Registration Rights Agreement, will
be duly and validly issued and outstanding
and will constitute valid and legally
binding obligations of the Company, as
issuer, and each of the Guarantors, as
guarantor, enforceable against the Company
and each of the Guarantors
6
<PAGE>
in accordance with their terms, subject to
the Enforceability Exceptions, and
will be entitled to the benefits of the
Indenture.
(k) Purchase
and Registration Rights Agreements. This Agreement
has been duly authorized, executed and
delivered by the Company and each of the
Guarantors; and the Registration Rights
Agreement has been duly authorized by
the Company and each of the Guarantors 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
Company and each of the Guarantors
enforceable against the Company and each of
the Guarantors in accordance with
its terms, subject to the Enforceability
Exceptions, and except that rights to
indemnity and contribution thereunder may
be limited by applicable law and
public policy.
(l) Amended
and Restated Credit Agreement. As of the Closing Date,
the Amended and Restated Credit Agreement
will have been duly authorized by the
Company and each of the Guarantors 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
Company and each of the Guarantors
enforceable against the Company and each of
the Guarantors in accordance with
its terms, subject to the Enforceability
Exceptions.
(m)
Descriptions of the Transaction Documents. Each Transaction
Document conforms in all material respects
to the description thereof contained
in the Preliminary Offering Memorandum and
the Offering Memorandum.
(n) No
Violation or Default. Neither the Company nor any of its
Significant Subsidiaries is (i) in
violation of its charter or by-laws or
similar organizational documents; (ii) in
default, and no event has occurred
that, 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 indenture, mortgage, deed of trust,
loan agreement or other agreement or
instrument to which the Company or any of
its Significant Subsidiaries is a
party or by which the Company or any of its
Significant Subsidiaries is bound or
to which any of the property or assets of
the Company or any of its Significant
Subsidiaries is subject; or (iii) in
violation of any law or statute or any
judgment, order, rule or regulation of any
court or arbitrator or governmental
or regulatory authority, except, in the
case of clauses (ii) and (iii) above,
for any such default or violation that
could not, individually or in the
aggregate, reasonably be expected to have a
Material Adverse Effect.
(o) No
Conflicts. The execution, delivery and performance by the
Company and each of the Guarantors of each
of the Transaction Documents to which
each is a party, the issuance and sale of
the Securities (including the
Guarantees) and compliance by the Company
and each of the Guarantors with the
terms thereof and the consummation of the
transactions contemplated by the
Transaction Documents will not (i) conflict
with or result in a breach or
violation of any of the terms or provisions
of, or constitute a default under,
or result in the creation or imposition of
any lien, charge or encumbrance upon
any property or assets of the Company or
any of its Significant Subsidiaries
pursuant to, any indenture, mortgage,
7
<PAGE>
deed of trust, loan agreement or other
agreement or instrument to which the
Company or any of its Significant
Subsidiaries is a party or by which the
Company or any of its significant
subsidiaries is bound or to which any of the
property or assets of the Company or any of
its Significant Subsidiaries is
subject (other than liens arising under the
Amended and Restated Credit
Agreement), (ii) result in any violation of
the provisions of the charter or
by-laws or similar organizational documents
of the Company or any of the
Guarantors or (iii) result in the violation
of any law or statute or any
judgment, order, rule or regulation of any
court or arbitrator or governmental
or regulatory authority, except, in the
case of clauses (i) and (iii) above, for
any such conflict, breach or violation that
could not, individually or in the
aggregate, reasonably be expected to have a
Material Adverse Effect.
(p) No
Consents Required. No consent, approval, authorization,
order, registration or qualification of or
with any court or arbitrator or
governmental or regulatory authority is
required for the execution, delivery and
performance by the Company and each of the
Guarantors of each of the Transaction
Documents to which each is a party, the
issuance and sale of the Securities
(including the Guarantees) and compliance
by the Company and each of the
Guarantors with the terms thereof and the
consummation of the transactions
contemplated by the Transaction Documents,
except for such consents, approvals,
authorizations, orders and registrations or
qualifications as may be required
(i) under applicable state securities laws
in connection with the purchase and
resale of the Securities by the Initial
Purchasers and (ii) with respect to the
Exchange Securities (including the related
guarantees) or the sale of
Registrable Securities pursuant to a Shelf
Registration Statement (each as
defined in the Registration Rights
Agreement) under the Securities Act, the
Trust Indenture Act and applicable state
securities laws as contemplated by the
Registration Rights Agreement.
(q) Legal
Proceedings. Except as described in the Preliminary
Offering Memorandum and the Offering
Memorandum, there are no legal,
governmental or regulatory investigations,
actions, suits or proceedings pending
to which the Company or any of its
subsidiaries is or may be a party or to which
any property of the Company or any of its
subsidiaries is or may be the subject
that, individually or in the aggregate, if
determined adversely to the Company
or any of its subsidiaries, could
reasonably be expected to have a Material
Adverse Effect; and to the best knowledge
of the Company and each of the
Guarantors, no such investigations,
actions, suits or proceedings are threatened
or contemplated by any governmental or
regulatory authority or by others.
(r)
Independent Accountants. Ernst & Young LLP, who have
certified
certain financial statements of the Company
and its subsidiaries are independent
public accountants with respect to the
Company and its subsidiaries within the
meaning of Rule 101 of the Code of
Professional Conduct of the American
Institute of Certified Public Accountants
and its interpretations and rulings
thereunder.
(s) Title to
Real and Personal Property. The Company and its
Significant 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 that are material to the
respective busi-
8
<PAGE>
nesses of the Company and its Significant
Subsidiaries, in each case free and
clear of all liens, encumbrances, claims
and defects and imperfections of title
except those that (i) do not materially
interfere with the use made and proposed
to be made of such property by the Company
and its Significant Subsidiaries,
(ii) could not reasonably be expected,
individually or in the aggregate, to have
a Material Adverse Effect or (iii) exist
under the Existing Credit Agreement.
(t) Title to
Intellectual Property. The Company and its
Significant 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; and the
conduct of their respective businesses will
not conflict in any material respect with
any such rights of others, and the
Company and its Significant Subsidiaries
have not received any notice of any
claim of infringement of or conflict with
any such rights of others except for
such conflicts and claims as could not,
individually or in the aggregate,
reasonably be expected to have a Material
Adverse Effect.
(u) Investment
Company Act. Neither the Company nor any of the
Guarantors is, and after giving effect to
the offering and sale of the
Securities and the application of the
proceeds thereof as described in the
Offering Memorandum none of them will be,
an "investment company" or an entity
"controlled" by an "investment company"
within the meaning of the Investment
Company Act of 1940, as amended, and the
rules and regulations of the Commission
thereunder (collectively, the "Investment
Company Act").
(v) Public
Utility Holding Company Act. Neither the Company nor
any of the Significant Subsidiaries is a
"holding company" or a "subsidiary
company" of a holding company or an
"affiliate" thereof within the meaning of
the Public Utility Holding Company Act of
1935, as amended.
(w) Taxes. The
Company and its subsidiaries have paid all federal,
state, local and foreign taxes and filed
all tax returns required to be paid or
filed through the date hereof; and except
as otherwise disclosed in the
Preliminary Offering Memorandum and the
Offering Memorandum, there is no tax
deficiency that has been, or could
reasonably be expected to be, asserted
against the Company or any of its
subsidiaries or any of their respective
properties or assets, except for such
failures to pay such taxes, file such tax
returns or deficiencies as could not,
individually or in the aggregate,
reasonably be expected to have a Material
Adverse Effect.
(x) Licenses
and Permits. The Company and its Significant
Subsidiaries possess all licenses,
certificates, permits and other
authorizations issued by, and have made all
declarations and filings with, the
appropriate federal, state, local or
foreign governmental or regulatory
authorities that are necessary for the
ownership or lease of their respective
properties or the conduct of their
respective businesses as described in the
Preliminary Offering Memo-
9
<PAGE>
randum and the Offering Memorandum, except
where the failure to possess or make
the same could not, individually or in the
aggregate, reasonably be expected to
have a Material Adverse Effect; and except
as described in the Preliminary
Offering Memorandum and the Offering
Memorandum, neither the Company nor any of
its Significant Subsidiaries has received
written notice of any revocation or
modification of any such license,
certificate, permit or authorization or has
any reason to believe that any such
license, certificate, permit or
authorization will not be renewed in the
ordinary course.
(y) No Labor
Disputes. No labor disturbance by or dispute with
employees of the Company or any of its
subsidiaries exists or, to the best
knowledge of the Company and each of the
Guarantors, is contemplated or
threatened except for such disturbances and
disputes as could not, individually
or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(z) Compliance
With Environmental Laws. The Company and its
subsidiaries (i) are in compliance with any
and all applicable federal, state,
local and foreign laws, rules, regulations,
decisions and orders relating to the
protection of human health and safety, the
environment or hazardous or toxic
substances or wastes, pollutants or
contaminants (collectively, "Environmental
Laws"); (ii) have received and are in
compliance with all permits, licenses or
other approvals required of them under
applicable Environmental Laws to conduct
their respective businesses; and (iii) have
not received notice of any actual or
potential liability for the investigation
or remediation of any disposal or
release of hazardous or toxic substances or
wastes, pollutants or contaminants,
except in any such case for any such
failure to comply with, or failure to
receive required permits, licenses or
approvals, or liability, as could not,
individually or in the aggregate,
reasonably be expected to have a Material
Adverse Effect.
(aa)
Compliance With ERISA. (1) Each employee benefit plan, within
the meaning of Section 3(3) of the Employee
Retirement Income Security Act of
1974, as amended ("ERISA"), that is
maintained, administered or contributed to
by the Company or any of its affiliates for
employees or former employees of the
Company and its affiliates has been
maintained in all material respects in
compliance with its terms and the
requirements of any applicable statutes,
orders, rules and regulations, including
but not limited to ERISA and the
Internal Revenue Code of 1986, as amended
(the "Code"); (2) no prohibited
transaction, within the meaning of Section
406 of ERISA or Section 4975 of the
Code, has occurred with respect to any such
plan excluding transactions effected
pursuant to a statutory or administrative
exemption; and (3) for each such plan
that is subject to the funding rules of
Section 412 of the Code or Section 302
of ERISA, no "accumulated funding
deficiency" as defined in Section 412 of the
Code has been incurred, whether or not
waived, and the fair market value of the
assets of each such plan (excluding for
these purposes accrued but unpaid
contributions) exceeds the present value of
all benefits accrued under such plan
determined using reasonable actuarial
assumptions; except, in the case of
clauses (2) and (3), for such transactions
or deficiencies as could not,
individually or in the aggregate,
reasonably be expected to have a Material
Adverse Effect.
10
<PAGE>
(bb)
Accounting Controls. The Company and its subsidiaries maintain
systems 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.
(cc)
Disclosure Controls. The Company has established and maintains
