PURCHASE AGREEMENT

 

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                                                                    EXHIBIT 2.10

 

                                                                  EXECUTION COPY

 

                               NTK HOLDINGS, INC.

 

               $403,000,000 AGGREGATE PRINCIPAL AMOUNT AT MATURITY

                    OF 10 3/4% SENIOR DISCOUNT NOTES DUE 2014

 

                               PURCHASE AGREEMENT

 

                                                               February 10, 2005

                                                               New York, New York

 

Credit Suisse First Boston LLC

Banc of America Securities LLC

UBS Securities LLC

c/o Credit Suisse First Boston LLC

    Eleven Madison Avenue

    New York, New York 10010-3629

 

Ladies and Gentlemen:

 

            NTK Holdings, Inc., a Delaware corporation (the "ISSUER"), agrees

with you as follows:

 

            1. Issuance of Notes. The Issuer proposes, subject to and upon the

terms and conditions set forth below, to issue and sell to Credit Suisse First

Boston LLC (the "REPRESENTATIVE") and the several parties named on Schedule I

hereto (together with the Representative, the "INITIAL PURCHASERS") $403,000,000

aggregate principal amount at maturity of 10 3/4% Senior Discount Notes due 2014

(the "ORIGINAL NOTES").

 

            The Original Notes will be offered and sold to the Initial

Purchasers pursuant to an exemption from the registration requirements under the

Securities Act of 1933, as amended (the "ACT"). The Issuer will prepare a final

offering memorandum dated as of the date hereof (as amended or supplemented on

or prior to the date hereof, including all exhibits thereto and all documents

incorporated by reference therein which have been prepared by Nortek, Inc. (the

"COMPANY") and filed with the Securities and Exchange Commission (the

"COMMISSION") at the date hereof, the "OFFERING MEMORANDUM"), relating to the

Issuer, the Subsidiaries (as defined below), the offering of the Original Notes

and the Original Notes.

 

            Subject to the foregoing paragraph, any references herein to the

terms "AMEND," "AMENDMENT" or "SUPPLEMENT" with respect to the Offering

Memorandum shall be deemed to refer to and include any document filed under the

Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), or otherwise

filed with the Commission, subsequent to the date hereof that is incorporated by

reference therein; and all references in this Agreement to financial statements

and schedules and other information which are "CONTAINED," "INCLUDED," "STATED,"

"SET FORTH" or "DESCRIBED" in the Offering Memorandum (or other references of

like import) shall be deemed to mean and include all such financial statements

and schedules and other information which are included in any document

 

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filed under the Act or the Exchange Act, as applicable, and incorporated by

reference in the Offering Memorandum.

 

            The Initial Purchasers have advised the Issuer that the Initial

Purchasers intend, as soon as they deem practicable after this Purchase

Agreement (this "AGREEMENT") has been executed and delivered, to resell (the

"EXEMPT RESALES") the Original Notes in private sales exempt from registration

under the Act on the terms set forth in the Offering Memorandum, as amended or

supplemented, solely to (i) persons whom the Initial Purchasers reasonably

believe to be "qualified institutional buyers" ("QIBs"), as defined in Rule 144A

under the Act ("RULE 144A"), in accordance with Rule 144A and (ii) other

eligible purchasers pursuant to offers and sales that occur outside the United

States within the meaning of Regulation S under the Act ("REGULATION S") in

accordance with Regulation S (the persons specified in clauses (i) and (ii), the

"ELIGIBLE PURCHASERS").

 

             Holders (including subsequent transferees) of the Original Notes

will have the registration rights under the registration rights agreement (the

"REGISTRATION RIGHTS AGREEMENT"), among the Issuer and the Initial Purchasers,

to be dated the Closing Date, substantially in the form attached hereto as

Exhibit A. Under the Registration Rights Agreement, the Issuer will agree to (i)

file with the Securities and Exchange Commission (the "COMMISSION") (a) a

registration statement under the Act (the "EXCHANGE OFFER REGISTRATION

STATEMENT") relating to a new issue of debt securities (collectively with the

Private Exchange Notes (as defined in the Registration Rights Agreement), the

"EXCHANGE NOTES" and, together with the Original Notes, the "NOTES"), to be

offered in exchange for the Original Notes (the "EXCHANGE OFFER") and issued

under the Indenture (as defined below) or an indenture substantially identical

to the Indenture and/or (b) under certain circumstances set forth in the

Registration Rights Agreement, a shelf registration statement pursuant to Rule

415 under the Act (the "SHELF REGISTRATION STATEMENT") relating to the resale by

certain holders of the Original Notes, (ii) use its reasonable best efforts to

cause the Exchange Offer Registration Statement and, if applicable, the Shelf

Registration Statement to be declared effective and (iii) use its reasonable

best efforts to consummate the Exchange Offer, all within the time periods

specified in the Registration Rights Agreement.

 

            The Original Notes will be issued pursuant to an indenture (the

"INDENTURE"), to be dated the Closing Date (as defined herein), among the Issuer

and U.S. Bank National Association, as trustee (the "TRUSTEE").

 

            This Agreement, the Original Notes, the Indenture and the

Registration Rights Agreement are hereinafter sometimes referred to collectively

as the "NOTE DOCUMENTS." The issuance and sale of the Original Notes and the use

of proceeds therefrom described in the Offering Memorandum are collectively

referred to as the "TRANSACTIONS."

 

            2. Agreements to Sell and Purchase. On the basis of the

representations, warranties and covenants contained in this Agreement, and

subject to the terms and conditions contained in this Agreement, the Issuer

agrees to issue and sell to the Initial Purchasers, and each of the Initial

Purchasers, severally and not jointly, agrees to purchase from the Issuer, the

aggregate principal amount at maturity of Original Notes set forth opposite its

name on Schedule I attached hereto. The purchase price for the Original Notes

shall be 60.89328% of their principal amount at maturity.

 

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            3. Delivery and Payment. Payment of the purchase price for the

Original Notes shall be made at 9:00 a.m., New York time, on February 15, 2005

(such date, the "CLOSING DATE") at the offices of Ropes & Gray LLP, 45

Rockefeller Plaza, New York, New York 10111, against delivery thereof on the

Closing Date. The Closing Date and the location of delivery of and the form of

payment for the Original Notes may be varied by mutual agreement between the

Initial Purchasers and the Issuer.

 

            The Original Notes shall be delivered by the Issuer to the Initial

Purchasers (or as the Initial Purchasers direct) through the facilities of The

Depository Trust Company against payment by the Initial Purchasers of the

purchase price therefor by means of wire transfer of immediately available funds

to such account or accounts specified by the Issuer in accordance with Section

8(h) on or prior to the Closing Date, or by such means as the parties hereto

shall agree prior to the Closing Date. The Original Notes shall be evidenced by

one or more certificates in global form registered in such names as the Initial

Purchasers may request upon at least one business day's notice prior to the

Closing Date and having an aggregate principal amount at maturity corresponding

to the aggregate principal amount at maturity of the Original Notes.

 

            4. Agreements of the Issuer. The Issuer covenants and agrees with

the Initial Purchasers as follows:

 

            (a) To furnish the Initial Purchasers and those persons identified

      by the Initial Purchasers, without charge, with as many copies of the

      Offering Memorandum, and any amendments or supplements thereto, as the

      Initial Purchasers may reasonably request. The Issuer consents to the use

      of the Offering Memorandum, and any amendments and supplements thereto, by

      the Initial Purchasers in connection with Exempt Resales.

 

            (b) Not to make any changes or additions to the information

      contained in the Offering Memorandum from the corresponding information

      contained in the most recent draft Offering Memorandum (the "DRAFT OM")

       provided to the Representative prior to the execution of this Agreement

      other than (i) changes and additions to reflect pricing information with

      respect to the Original Notes and (ii) such other changes and additions as

      to which the Representative shall have consented (such consent not to be

      unreasonably withheld or delayed). Not to amend or supplement the Offering

      Memorandum prior to the Closing Date unless the Initial Purchasers (i)

      shall previously have been advised of such proposed amendment or

      supplement at least two business days prior to the proposed use (or such

      shorter period as may be required to comply with applicable legal and

      contractual obligations) and (ii) shall not have objected to, or shall

      have consented to (such consent not to be unreasonably withheld or

      delayed), such amendment or supplement.

 

            (c) If, prior to the time that the Initial Purchasers have completed

      their distribution of the Original Notes, any event shall occur and, as a

      result thereof, in the judgment of the Issuer or in the judgment of

      counsel to the Initial Purchasers, the Offering Memorandum, as then

      amended or supplemented, would include any untrue statement of a material

      fact or omit to state a material fact necessary in order to make the

      statements in the Offering Memorandum, as then amended or supplemented, in

      the light of the circumstances under which they are made, not misleading,

      or if it is necessary to amend or supplement the Offering Memorandum

 

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      to comply with all applicable laws, the Issuer shall promptly notify the

      Initial Purchasers of such event and (subject to Section 4(b)) prepare an

      appropriate amendment or supplement to the Offering Memorandum so that (i)

      the statements in the Offering Memorandum, as amended or supplemented,

      will not contain any untrue statement of a material fact or omit to state

       any material fact necessary in order to make the statements therein, in

      the light of the circumstances at the time that the Offering Memorandum is

      delivered to prospective Eligible Purchasers, not misleading and (ii) the

      Offering Memorandum will comply with applicable law.

 

            (d) To qualify or register the Original Notes under the securities

      laws of such jurisdictions as the Initial Purchasers may request and to

      continue such qualification in effect so long as required for the Exempt

      Resales. Notwithstanding the foregoing, the Issuer shall not be required

      to qualify as a foreign corporation in any jurisdiction in which it is not

      so qualified or to execute a general consent to service of process in any

      such jurisdiction or subject itself to taxation in excess of a nominal

      dollar amount in any such jurisdiction where it is not then so subject.

 

            (e) To advise the Initial Purchasers promptly and, if requested by

      the Initial Purchasers, to confirm such advice in writing, of the issuance

      by any securities commission of any stop order suspending the

      qualification or exemption from qualification of any of the Original Notes

      for offering or sale in any jurisdiction, or the initiation of any

      proceeding for such purpose by any securities commission or other

      regulatory authority. The Issuer shall use its reasonable best efforts to

      prevent the issuance of any stop order or order suspending the

      qualification or exemption of any of the Original Notes under any

      securities laws, and, if at any time any securities commission or other

      regulatory authority shall issue an order suspending the qualification or

      exemption of any of the Original Notes under any securities laws, the

      Issuer shall use its reasonable best efforts to obtain the withdrawal or

      lifting of such order at the earliest possible time.

 

            (f) Whether or not the transactions contemplated by this Agreement

      are consummated, to pay all costs, expenses, fees and disbursements

      (including fees and disbursements of counsel and accountants for the

      Issuer) incurred in connection with the performance of the obligations of

      the Issuer under this Agreement and all stamp, documentary or similar

      taxes incident to and in connection therewith, including, those relating

      to: (i) the preparation, printing and distribution of the Offering

      Memorandum and any amendments and supplements thereto, (ii) all expenses

      (including travel expenses) of the Issuer in connection with any meetings

      with prospective investors in the Original Notes (including, if

      applicable, rental costs of airplanes used to transport representatives of

      the Issuer, the Company and the Initial Purchasers to such meetings),

      (iii) the preparation (except to the extent prepared by counsel to the

      Initial Purchasers), notarization (if necessary) and delivery of the Note

      Documents and all other agreements, memoranda, correspondence and

      documents prepared and delivered in connection with this Agreement and

      with the Exempt Resales, (iv) the issuance, transfer and delivery of the

      Original Notes by the Issuer to the Initial Purchasers, (v) the

      qualification or registration of the Original Notes for offer and sale

      under the securities laws of the several states of the United States or

      provinces of Canada (including, without limitation, the cost of printing

      and mailing preliminary and final Blue Sky or legal investment memoranda

      and reasonable fees

 

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      and disbursements of counsel (including local counsel) to the Initial

      Purchasers relating thereto), (vi) the application for quotation of the

      Original Notes in The PORTALSM Market ("PORTAL") of the National

      Association of Securities Dealers, Inc. ("NASD"), (vii) the inclusion of

      the Original Notes in the book-entry system of The Depository Trust

      Company ("DTC"), (viii) the rating of the Original Notes by rating

      agencies, (ix) the fees and expenses of the Trustee and its counsel and

      (x) the performance by the Issuer of its other obligations under the Note

       Documents. Except as specifically provided in this Section 4(f), the

      Initial Purchasers shall pay all of their own expenses (including all of

      the fees and disbursements of counsel) in connection with the preparation

      of this Agreement and the other Note Documents, the transactions

      contemplated hereby and thereby and all Exempt Resales.

 

            (g) To use the net proceeds from the sale of the Original Notes in

      the manner described in the Offering Memorandum under the caption "Use of

      proceeds." (h) Not to, and not to permit any of the Issuer's subsidiaries

      listed on Schedule II attached hereto (each, a "SUBSIDIARY" and

      collectively, the "SUBSIDIARIES") to, sell, offer for sale or solicit

      offers to buy any security (as defined in the Act) that would be

      integrated with the sale of the Original Notes in a manner that would

      require the registration under the Act of the sale of the Original Notes

      to the Initial Purchasers or any Eligible Purchasers.

 

            (i) During the period of two years immediately following the Closing

      Date, not to, and to cause their respective controlled "affiliates" (as

      defined in Rule 144 under the Act) not to, resell any of the Original

      Notes that constitute "restricted securities" under Rule 144 that have

      been reacquired by any of them (other than in a transaction registered

      under the Act).

 

            (j) Not to engage, and to cause the Subsidiaries and their other

      respective controlled affiliates or any person acting on their behalf

      (other than, in any case, the Initial Purchasers and any of their

      controlled affiliates, as to whom the Issuer makes no covenant) not to

      engage, in any form of general solicitation or general advertising (within

      the meaning of Regulation D under the Act) in connection with any offer or

      sale of the Original Notes in the United States.

 

            (k) Not to engage, and to cause the Subsidiaries and their other

       respective controlled affiliates or any person acting on their behalf

      (other than, in any case, the Initial Purchasers and any of their

      controlled affiliates, as to whom the Issuer makes no covenant) not to

      engage, in any directed selling effort with respect to the Original Notes,

      and to comply with the offering restrictions requirement of Regulation S.

      Terms used in this paragraph have the meanings given to them by Regulation

      S.

 

            (l) From and after the Closing Date, for so long as any of the

      Original Notes remain outstanding and are "restricted securities" within

      the meaning of Rule 144(a)(3) under the Act and during any period in which

      the Issuer is not subject to Section 13 or 15(d) of the Exchange Act, to

      make available upon request the information required by Rule 144A(d)(4)

      under the Act to (i) any holder or beneficial owner of Original Notes in

      connection with any sale of such Original Notes and (ii) any prospective

      purchaser of such Original Notes from any

 

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      such holder or beneficial owner designated by the holder or beneficial

      owner. The Issuer will pay the reasonable expenses of preparing, printing

      and distributing such documents.

 

            (m) To comply with its obligations under the Registration Rights

      Agreement.

 

            (n) To comply with its obligations under the letter of

      representations to DTC relating to the approval of the Original Notes by

      DTC for "book-entry" transfer and to use their reasonable best efforts to

      obtain approval of the Original Notes by DTC for "book-entry" transfer.

 

            (o) Prior to the Closing Date, to furnish without charge to the

      Initial Purchasers, (i) as soon as they have been prepared by the Company,

      a copy of any regularly prepared internal financial statements of the

      Company and the Subsidiaries for any period subsequent to the period

      covered by the financial statements appearing in the Offering Memorandum,

      (ii) as soon as they have been furnished to the Issuer, all other reports

      and other communications (financial or otherwise) that the Issuer or any

      of the Subsidiaries mails or otherwise makes available to its security

      holders and (iii) such other information as the Initial Purchasers shall

      reasonably request.

 

            (p) Not to, and to cause any of their respective controlled

      affiliates or anyone acting on their or such person's behalf (other than

      the Initial Purchasers and their affiliates, as to whom the Issuer makes

      no covenant) not to, distribute prior to the Closing Date any offering

      material in connection with the offer and sale of the Original Notes other

      than the Offering Memorandum (it being understood that certain potential

      purchasers of the Original Notes from the Initial Purchasers may be

      provided with a summary term sheet and "description of notes" prior to the

      distribution of the Offering Memorandum).

 

            (q) During the period of two years after the Closing Date or, if

      earlier, until such time as the Original Notes are no longer restricted

      securities (as defined in Rule 144 under the Act), not to be or become a

      closed-end investment company required to be registered, but not

      registered, under the Investment Company Act of 1940.

 

            (r) In connection with the offering, until the Initial Purchasers

      shall have notified the Issuer of the completion of the distribution of

      the Original Notes, not to, and to cause any of its controlled

      "affiliates" (as such term is defined in Rule 501(b) of Regulation D under

      the Act) not to, either alone or with one or more other persons, bid for

      or purchase for any account in which it or any of its affiliates has a

      beneficial interest, for the purpose of creating actual or apparent active

      trading in, or of raising the price of, the Original Notes.

 

            (s) To use its reasonable best efforts to effect the inclusion of

      the Original Notes in Portal.

 

            (t) During the period from the date hereof through and including the

      date that is 90 days after the date hereof, without the prior written

      consent of the Representative, offer, sell, contract to sell or otherwise

      dispose of any debt securities issued or guaranteed by the Issuer or any

      Subsidiary and having a tenor of more than one year, other than debt

       instruments

 

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                                      -7-

 

      issued to sellers of property, capital lease obligations, credit

      facilities used for working capital or to finance acquisitions and in

      connection with the Company's exchange offer for its 8 1/2% senior

      subordinated notes.

 

            5. Representations and Warranties. (a) The Issuer represents and

warrants to the Initial Purchasers that:

 

            (i) Neither (a) the Offering Memorandum as of the date thereof and

       the Closing Date nor (b) any amendment or supplement thereto as of the

      date thereof and the Closing Date contained or will contain any untrue

      statement of a material fact or omitted or will omit to state a material

      fact necessary to make the statements therein, in the light of the

      circumstances under which they were made, not misleading, except that the

      representations and warranties set forth in this Section 5(i) do not apply

      to statements or omissions made in reliance upon and in conformity with

      information relating to any of the Initial Purchasers furnished to the

      Issuer in writing by the Initial Purchasers expressly for use in the

      Offering Memorandum or any amendment or supplement thereto.

 

             (ii) The documents incorporated or deemed to be incorporated by

      reference in the Offering Memorandum, at the time they were or hereafter

      are filed with the Commission, complied and will comply in all material

      respects with the requirements of the Act or the Exchange Act, as

      applicable, and the rules and regulations of the Commission thereunder.

 

            (iii) As of the Closing Date, after giving effect to the

      Transactions, the capitalization of the Issuer shall be as described in

      the Offering Memorandum under the heading "Capitalization"; all of the

      subsidiaries of the Issuer are listed on Schedule II attached hereto; all

      of the outstanding shares of capital stock of the Issuer and the

      Subsidiaries have been, and as of the Closing Date will be, duly

      authorized and validly issued, are fully paid and nonassessable and were

      not issued in violation of any preemptive or similar rights; except for

      security interests granted pursuant to the Company's credit agreement, all

      of the outstanding shares of capital stock of the Issuer and of each of

      the Subsidiaries are and will be as of the Closing Date free and clear of

      all liens, encumbrances, equities and claims or restrictions on

      transferability (other than those imposed by the Act, the securities or

      "Blue Sky" laws of certain jurisdictions or as otherwise permitted by the

      Indenture) or voting; except as set forth in the Offering Memorandum,

      there are no (a) options, warrants or other rights to purchase, (b)

      agreements or other obligations to issue or (c) other rights to convert

      any obligation into, or exchange any securities for, shares of capital

      stock of or ownership interests in the Issuer or any of the Subsidiaries

      outstanding. Except for the Subsidiaries, as disclosed in the Offering

      Memorandum or as set forth on Schedule III attached hereto, the Issuer

      does not own, directly or indirectly, more than 5% of the outstanding

      capital stock or other equity interests in any firm, partnership, joint

      venture or other entity.

 

            (iv) Each of the Issuer and the Subsidiaries is duly organized,

      validly existing and in good standing under the laws of its respective

      jurisdiction of incorporation, and each of the Issuer and the Subsidiaries

      has all requisite corporate, limited liability company or partnership, as

      applicable, power and authority to own its properties and conduct its

      business as now conducted and as described in the Offering Memorandum;

      each of the Issuer and the

 

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                                      -8-

 

      Subsidiaries is duly qualified to do business as a foreign corporation,

      limited liability company or partnership, as applicable, in good standing,

      where applicable, in all other jurisdictions where the ownership or

      leasing of its properties or the conduct of its business requires such

      qualification, except where the failure to be so qualified would not,

      individually or in the aggregate, have a material adverse effect on the

      general affairs, management, business, condition (financial or otherwise),

      prospects or results of operations of the Issuer and the Subsidiaries,

      taken as a whole (any such event, a "MATERIAL ADVERSE EFFECT").

 

            (v) The Issuer has all requisite corporate power and authority to

      execute, deliver and perform each of its obligations under the Original

      Notes, the Exchange Notes and the Private Exchange Notes. The Original

      Notes, when issued, will be in the form contemplated by the Indenture. The

      Original Notes, the Exchange Notes and the Private Exchange Notes each

      have been duly and validly authorized by the Issuer. When executed by the

      Issuer and authenticated by the Trustee in accordance with the provisions

      of the Indenture, and, in the case of the Original Notes, when delivered

      to and paid for by the Initial Purchasers in accordance with the terms of

      this Agreement, the Original Notes, the Exchange Notes and the Private

      Exchange Notes, will constitute valid and legally binding obligations of

      the Issuer, entitled to the benefits of the Indenture, and enforceable

      against the Issuer in accordance with their terms, except that the

      enforcement thereof may be subject to (a) bankruptcy, insolvency,

      reorganization, moratorium or other similar laws now or hereafter in

      effect relating to creditors' rights generally, and (b) general principles

      of equity and the discretion of the court before which any proceeding

      therefor may be brought (the "BANKRUPTCY EXCEPTIONS").

 

            (vi) The Issuer has all requisite corporate power and authority to

      execute, deliver and perform its obligations under the Indenture. The

      Indenture will meet the requirements for qualification under the Trust

      Indenture Act of 1939, as amended (the "TIA"). The Indenture has been duly

      and validly authorized by the Issuer and, when executed and delivered by

      the Issuer (assuming the due authorization, execution and delivery by the

      Trustee), will constitute a valid and legally binding agreement of the

      Issuer, enforceable against the Issuer in accordance with its terms,

      except that the enforceability thereof may be limited by the Bankruptcy

      Exceptions.

 

            (vii) The Issuer has all requisite corporate power and authority to

      execute, deliver and perform its obligations under the Registration Rights

      Agreement. The Registration Rights Agreement has been duly and validly

      authorized by the Issuer. When executed and delivered by the Issuer

      (assuming the due authorization, execution and delivery by the Initial

      Purchasers), the Registration Rights Agreement will constitute a valid and

      legally binding agreement of the Issuer enforceable against the Issuer in

      accordance with its terms, except that (A) the enforcement thereof may be

      subject to the Bankruptcy Exceptions and (B) any rights to indemnity or

      contribution thereunder may be limited by federal and state securities

      laws and public policy considerations.

 

            (viii) The Issuer has all requisite corporate power and authority to

      execute, deliver and perform its obligations under this Agreement and to

      consummate the transactions contemplated hereby. This Agreement and the

      consummation by the Issuer of the transactions

 

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                                       -9-

 

      contemplated hereby have been duly and validly authorized by the Issuer.

      This Agreement has been duly executed and delivered by the Issuer.

 

            (ix) No consent, approval, authorization or order of any court or

      governmental agency or body, or third party is required for the issuance

      and sale by the Issuer of the Original Notes to the Initial Purchasers or

      the consummation by the Issuer of the other transactions contemplated

      hereby, except such as have been obtained or will be obtained prior to the

      Closing Date and such as may be required under state securities or "Blue

      Sky" laws in connection with the purchase and resale of the Original Notes

      by the Initial Purchasers. Neither the Issuer nor any Subsidiary is or

      will be on the Closing Date (a) in violation of their certificates of

      incorporation or bylaws (or similar organizational document), (b) in

      breach or violation of any statute, judgment, decree, order, rule or

      regulation applicable to any of them or any of their properties or assets,

      except for any such breach or violation that would not, individually or in

      the aggregate, have a Material Adverse Effect, or (c) in breach of or

      default under (nor has any event occurred that, with notice or passage of

      time or both, would constitute a default under) or in violation of any of

      the terms or provisions of any indenture, mortgage, deed of trust, loan

      agreement, note, lease, license, franchise agreement, permit, certificate,

      contract or other agreement or instrument to which any of them is a party

      or to which any of them or their respective properties or assets is

      subject (collectively, "CONTRACTS"), except for any such breach, default,

      violation or event that would not, individually or in the aggregate, have

      a Material Adverse Effect.

 

            (x) The execution, delivery and performance by the Issuer of this

      Agreement, the Indenture and the Registration Rights Agreement and the

      consummation by the Issuer of the transactions contemplated hereby and

      thereby (including, without limitation, the issuance and sale of the

      Original Notes to the Initial Purchasers) will not conflict with or

      constitute or result in a breach of or a default under (or an event that

      with notice or passage of time or both would constitute a default under)

      or violation of any of (a) the terms or provisions of any Contract, except

      for any such conflict, breach, violation, default or event that would not,

      individually or in the aggregate, have a Material Adverse Effect, (b) the

      certificate of incorporation or bylaws (or similar organizational

      document) of the Issuer or any of the Subsidiaries or (c) (assuming

      compliance with all applicable state securities or "Blue Sky" laws and

      assuming the accuracy of the representations and warranties of the Initial

      Purchasers in Section 5(b) hereof) any statute, judgment, decree, order,

      rule or regulation applicable to the Issuer or any of the Subsidiaries or

      any of their respective properties or assets, except for any such

      conflict, breach or violation that would not, individually or in the

      aggregate, have a Material Adverse Effect.

 

            (xi) The historical consolidated financial statements (including the

      notes thereto) of the Company (or its predecessors) and its subsidiaries

      included or incorporated by reference in the Offering Memorandum present

      fairly in all material respects the consolidated financial position,

      results of operations, cash flows and changes in stockholder's investment

      of the Company at the respective dates and for the respective periods

      indicated. All such financial statements have been prepared in accordance

      with generally accepted accounting principles ("GAAP") applied on a

      consistent basis throughout the periods presented (except as

 

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                                       -10-

 

      disclosed therein), except that the interim financial statements do not

      include full footnote disclosure.

 

            (xii) Ernst & Young LLP (the "INDEPENDENT REGISTERED PUBLIC

      ACCOUNTING FIRM"), which has audited the financial statements and

      supporting schedules as of December 31, 2003 and for the periods January

      1, 2003 to January 9, 2003 and January 10, 2003 to December 31, 2003,

      incorporated by reference in the Offering Memorandum, is an independent

      registered public accounting firm in accordance with the Standards of the

      Public Company Accounting Oversight Board (United States).

 

            (xiii) There is not pending or, to the knowledge of the Issuer,

      threatened any action, suit, proceeding, inquiry or investigation to which

      the Issuer or any of the Subsidiaries is a party, or to which the property

      or assets of the Issuer or any of the Subsidiaries are subject, before or

      brought by any court, arbitrator or governmental agency or body that could

      reasonably be expected to have a Material Adverse Effect or that seeks to

      restrain, enjoin, prevent the consummation of or otherwise challenge the

      issuance or sale of the Original Notes to be sold hereunder or the

      consummation of the other transactions described in the Offering

      Memorandum.

 

            (xiv) The Issuer and the Subsidiaries own or possess adequate

      licenses or other rights to use all patents, trademarks, service marks,

      trade names, copyrights, technology and know-how necessary to conduct the

      business now or proposed to be conducted by the Issuer and the

      Subsidiaries as described in the Offering Memorandum, except for those

      patents, trademarks, service marks, trade names, copyrights, technology

      and know-how the failure to own or have the right to use which would not

      have a Material Adverse Effect, and, except as disclosed in the Offering

      Memorandum, neither the Issuer, nor any of the Subsidiaries has received

      any notice of infringement of or conflict with (or knows of such

      infringement of or conflict with) rights of others with respect to any

      patents, trademarks, service marks, trade names, copyrights, technology or

      know-how except for conflicts which could not reasonably be expected to

      have a Material Adverse Effect; and to the best knowledge of the Issuer,

      do not in the conduct of their business as now conducted or proposed to be

      conducted, infringe or conflict with any such rights of any third party,

      except as could not reasonably be expected to have a Material Adverse

      Effect.

 

            (xv) Since the date of the most recent financial statements

      appearing or incorporated by reference in the Offering Memorandum, except

      as described therein, (a) none of the Issuer or the Subsidiaries has

      incurred any liabilities or obligations, direct or contingent, or entered

      into or agreed to enter into any transactions or contracts (written or

      oral) not in the ordinary course of business, which liabilities,

      obligations, transactions or contracts would, individually or in the

      aggregate, be material to the general affairs, management, business,

      condition (financial or otherwise), prospects or results of operations of

      the Company and the Subsidiaries, taken as a whole, (b) none of the Issuer

      or the Subsidiaries has purchased any of its outstanding capital stock,

      nor declared, paid or otherwise made any dividend or distribution of any

      kind on its capital stock (other than with respect to any of such

      Subsidiaries, the purchase of, or dividend or distribution on, capital

      stock owned by the Issuer or any of the Subsidiaries and other than on the

      Closing Date as described in the Offering Memorandum

 

<PAGE>

                                      -11-

 

      under "Use of Proceeds") and (c) there shall not have been any material

      change in the capital stock or long-term indebtedness of the Issuer or the

      Subsidiaries.

 

            (xvi) The Issuer and the Subsidiaries have (A) filed all federal,

      state and local and foreign tax returns which are required to be filed

      through the date hereof, and all such tax returns are true, complete and

      accurate in all material respects, or (B) received valid extensions

      thereof and have paid all taxes shown on such returns and all assessments

      received by them except where, in the case of state and local and foreign

      tax returns, the failure to file in clause (A), or extend the due date of

      or pay the same in clause (B), in the aggregate, could not reasonably be

      expected to have a Material Adverse Effect; the Issuer has no knowledge of

      any tax deficiency which has been or might be asserted against the Issuer

      or any of the Subsidiaries which could reasonably be expected to have a

      Material Adverse Effect; and to the best knowledge of the Issuer, all tax

      liabilities of the Issuer and the Subsidiaries are adequately provided for

      on the consolidated books of the Issuer.

 

            (xvii) The statistical and market-related data included in the

      Offering Memorandum are based on or derived from sources that the Issuer

      believes to be reliable and accurate.

 

            (xviii) None of the Issuer, the Subsidiar