$190,000,000
TRC FINANCE, INC.
(a Delaware corporation)
10% Senior Notes due 2013
PURCHASE AGREEMENT
September 16, 2005
September 16, 2005
Wachovia Capital Markets, LLC
BNP Paribas Securities Corp.
▇▇▇▇▇▇▇▇▇ & Company, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
c/o Wachovia Capital Markets, LLC
One Wachovia Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
TRC FINANCE, INC., a Delaware corporation ("Finance"), proposes to
issue and sell to the several purchasers named in Schedule I hereto (the
"Initial Purchasers"), for whom Wachovia Capital Markets, LLC, is acting as a
Representative (in such capacity, the "Representative"), $190,000,000 aggregate
principal amount of its 10% Senior Notes due 2013 (the "Notes"). The Notes will
be issued pursuant to an Indenture (the "Indenture") dated as of the Closing
Date (as defined in Section 2) among Finance, the Company, the Guarantors (as
defined below) and The Bank of New York, as Trustee (the "Trustee").
In connection with the consummation of the Transactions (as defined
herein), Finance will merge with and into The Restaurant Company (the "Company")
(the "Merger"), after which the obligations of Finance under this Agreement, the
Registration Rights Agreement (as defined herein) and the Indenture will become
obligations of the Company. The representations, warranties and agreements of
the Company and the Guarantors under this Agreement shall not become effective
until consummation of the Merger and execution by the Company and the Guarantors
of a joinder agreement to this Agreement, the form of which is attached hereto
as Exhibit A (the "Joinder Agreement"), at which time such representations,
warranties and agreements shall become effective as of the date hereof pursuant
to the terms of the Joinder Agreement and each of the Company and the Guarantors
shall, without any further action by any person, become a party to this
Agreement. References to the "Issuer" refer to Finance before consummation of
the Merger and to the Company after consummation of the Merger.
The Notes, upon consummation of the Merger, will be guaranteed (the
"Guarantees") on a senior unsecured basis by each of the Company's subsidiaries
named in Schedule II hereto (each individually, a "Guarantor" and collectively
the "Guarantors").
The Notes will have the benefit of a registration rights agreement
(the "Registration Rights Agreement"), to be dated as of the Closing Date (as
defined below), among Finance, the Company, the Guarantors and the Initial
Purchasers, pursuant to which Finance and, upon consummation of the Merger, the
Company and the Guarantors, will agree to register under the Act and offer to
exchange notes with terms identical to the Notes for the Notes, subject to the
terms and conditions therein specified.
The Notes and the Guarantees are being offered and sold by Finance in
connection with the acquisition (the "Acquisition") of The Restaurant Holding
Corporation ("Parent") pursuant to that certain Stock Purchase Agreement, dated
as of September 2, 2005, among TRC Holding Corp. ("Holdings"), Parent and its
current equityholders (together with all schedules and exhibits thereto, the
"Acquisition Documents"). In connection with the Acquisition, (i) an investor
group led by ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners IV, L.P. and certain of its affiliates and
certain members of management who may choose to roll over all or a portion of
their equity interests (except that ▇▇▇▇▇▇ ▇▇▇▇▇ may choose to roll over up to
$6.5 million of his equity), will make an aggregate investment of not less than
$65.0 million (the "Equity Contribution") and (ii) the Company will enter into a
new senior revolving credit facility of up to $25.0 million (the "Credit
Agreement" and together with all other documents related to such facility, the
"Credit Documents") with Wachovia Bank, National Association, as administrative
agent, and the other agents and the lenders party thereto.
This Agreement, the Notes, the Guarantees, the Indenture and the
Registration Rights Agreement are hereinafter sometimes referred to collectively
as the "Note Documents." The Note Documents, the Acquisition Documents and the
Credit Documents are hereinafter sometimes referred to collectively as the
"Transaction Documents." The issuance and sale of the Notes and the Guarantees,
the Acquisition, the Merger, the Equity Contribution and the effectiveness of
the Credit Documents and the initial borrowings thereunder are collectively
referred to as the "Transactions."
The Notes (and the related Guarantees) will be offered and sold
through the Initial Purchasers without being registered under the Securities Act
of 1933, as amended (the "Securities Act"), to qualified institutional buyers in
compliance with the exemption from registration provided by Rule 144A under the
Securities Act, and in offshore transactions in reliance on Regulation S under
the Securities Act ("Regulation S"). The Initial Purchasers have advised the
Company that they will offer and sell the Notes purchased by them hereunder in
accordance with Section 3 hereof as soon as the Representative deems advisable.
In connection with the sale of the Notes, the Company has prepared a
preliminary offering memorandum, dated September 2, 2005 (the "Preliminary
Memorandum") and a final offering memorandum, dated the date hereof (the "Final
Memorandum" and, with the Preliminary Memorandum, each a "Memorandum"). Each
Memorandum sets forth certain information concerning the Company, the Notes, the
other Transaction Documents and the Transactions. Each of Finance and the
Company hereby confirms that it has authorized the use of the Preliminary
Memorandum and the Final Memorandum, and any amendment or supplement thereto, in
connection with the offer and sale of the Notes by the Initial Purchasers.
1. Representations and Warranties of Finance, the Company and the
Guarantors. As of the date hereof and at the Closing Date, Finance represents
and warrants, and the Company and the Guarantors jointly and severally represent
and warrant at the Closing Date upon execution and delivery of the Joinder
Agreement, in each case, to each Initial Purchaser (it being understood that
prior to the Closing Date and execution and delivery of the Joinder Agreement,
all representations and warranties of Finance with respect to the Company and
its subsidiaries are made to the best knowledge of Finance, after due inquiry)
that:
-2-
(a) The Preliminary Memorandum does not contain, and the Final
Memorandum, in the form used by the Initial Purchasers to confirm sales on
the Closing Date, and any amendment or supplement thereto does not and will
not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the representations or warranties set forth in this paragraph
shall not apply to statements in or omissions from either Memorandum made
in reliance upon and in conformity with information furnished in writing to
the Issuer by the Initial Purchasers expressly for use therein, as
specified in Section 11. The statistical and industry data included in each
Memorandum are based on or derived from sources that the Issuer believes to
be reliable and accurate.
(b) Each of Finance and the Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the
State of Delaware. Each of Finance and the Company is duly qualified to do
business as a foreign corporation and is in good standing under the laws of
each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except where the failure
to so qualify or be in good standing would not have a Material Adverse
Effect. "Material Adverse Effect" shall mean a material adverse change in
or effect on or any development having a prospective material adverse
effect on (i) the business, condition (financial or otherwise), results of
operations or management of the Company and its subsidiaries, taken as a
whole, or (ii) the ability of Finance, the Company and each Guarantor to
perform its obligations under the Notes or the other Transaction Documents.
(c) Each of Finance, the Company and each Guarantor has full power
(corporate and other) to own or lease its properties and conduct its
business as described in each Memorandum; and each of Finance, the Company
and each Guarantor has full power (corporate and other) to enter into the
Transaction Documents and to carry out all the terms and provisions hereof
and thereof to be carried out by it.
(d) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Final Memorandum. All of the issued shares
of capital stock of each of Finance and the Company have been duly
authorized and validly issued and are fully paid and nonassessable; and
none of the outstanding shares of capital stock of either Finance or the
Company was issued in violation of the preemptive or other similar rights
of any security holder of Finance or the Company, as applicable.
(e) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Final
Memorandum and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable, and are owned directly by the
-3-
Company, free and clear of all liens, encumbrances, equities or claims
(other than those imposed by the Securities Act and the securities or "Blue
Sky" laws of certain jurisdictions and those imposed by the Credit
Agreement).
(f) No subsidiary of the Company is prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary's property or assets to the Company or
any other subsidiary of the Company, except as provided by applicable laws
or regulations, by the Indenture or the Credit Agreement or as otherwise
disclosed in the Final Memorandum.
(g) Except for employee and director stock options or as otherwise
disclosed in the Final Memorandum or for such stock options that will be
terminated upon consummation of the Transactions, there are no outstanding
(i) securities or obligations of Finance or the Company convertible into or
exchangeable for any capital stock of Finance or the Company, (ii)
warrants, rights or options to subscribe for or purchase from Finance or
the Company any such capital stock or any such convertible or exchangeable
securities or obligations or (iii) obligations of Finance or the Company to
issue any such capital stock, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or options.
(h) PricewaterhouseCoopers LLP, who has certified the audited
financial statements included in the Final Memorandum and delivered its
report with respect to the audited financial statements in the Final
Memorandum, is an independent public accountant with respect to the Company
within the meaning of the Securities Act and the applicable rules and
regulations thereunder.
The financial statements (including the notes thereto) of the Company
and its consolidated subsidiaries in the Final Memorandum fairly present in
all material respects the financial position, results of operations, cash
flows and changes in stockholders' equity of the Company and its
consolidated subsidiaries as of the dates and for the periods specified
therein; since the date of the latest of such financial statements, there
has been no change nor any development or event involving a prospective
change which has had or could reasonably be expected to have a Material
Adverse Effect; such financial statements have been prepared in all
material respects in accordance with generally accepted accounting
principles consistently applied throughout the periods involved (except as
otherwise expressly disclosed in the notes thereto) and comply as to form
in all material respects with the applicable accounting requirements of
Regulation S-X under the Securities Act; the information set forth under
the captions "Offering Memorandum Summary -- Summary Consolidated
Historical Financial Information", "Selected Historical Consolidated
Financial Data" and "Management's Discussion and Analysis of Financial
Conditions and Results of Operations" in the Final Memorandum has been
fairly extracted from the financial statements of the Company and its
consolidated subsidiaries, fairly presents in all material respects the
information included therein and has been compiled on a basis consistent
with that of the audited and unaudited financial statements included in the
Final Memorandum. The material
-4-
assumptions underlying the pro forma financial information included in the
Final Memorandum include all material assumptions required to give effect
to the Transactions and events described in the notes thereto, are
reasonable and are described in the Final Memorandum and the pro forma
adjustments give proper effect to those assumptions and reflect the proper
application of those adjustments to the applicable historical financial
statements included in the Final Memorandum.
(i) Subsequent to the respective dates as of which information is
given in the Final Memorandum, (i) none of Finance or the Company and its
subsidiaries have incurred any material liability or obligation, direct or
contingent, or entered into any material transaction in each case not in
the ordinary course of business; (ii) neither Finance nor the Company has
purchased any of its outstanding capital stock, and has declared, paid or
otherwise made any dividend or distribution of any kind on any class of its
capital stock, except as may be necessary to apply the proceeds from the
sale of the Notes as contemplated under the caption "Use of Proceeds" in
the Final Memorandum; and (iii) there has not been any material change in
the capital stock, short-term debt or long-term debt of the Company and its
subsidiaries, except as disclosed in the Final Memorandum.
(j) The Company and each of its subsidiaries (and, with respect to
clause (i), Finance) maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(k) This Agreement has been duly authorized, executed and delivered by
Finance and, at the Closing Date, will have been authorized by the Company
and each Guarantor.
(l) The Indenture and the Registration Rights Agreement have been duly
authorized by Finance, and as of the Closing Date, will have been duly
authorized by the Company and each Guarantor and, on the Closing Date, will
have been duly executed and delivered by Finance, the Company and each
Guarantor and, assuming due authorization, execution and delivery by the
Trustee or the Initial Purchasers respectively, will constitute the legal,
valid and binding obligations of the Company and each Guarantor,
enforceable against the Company and each Guarantor in accordance with their
respective terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws now or hereafter in effect relating to creditors'
rights generally, and (ii) general principles of equity and the discretion
of the court before which any proceeding therefor may be brought; and the
Indenture and the Registration Rights Agreement will conform in all
material respects to the description thereof in the Final Memorandum and
will be substantially in the form previously delivered to you.
-5-
(m) The Indenture conforms in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and to the rules and regulations of the Securities and
Exchange Commission (the "Commission") applicable to an indenture that is
qualified thereunder.
(n) The Notes have been duly authorized by Finance and, when executed
and authenticated in the manner provided for in the Indenture and delivered
to and paid for by the Initial Purchasers as provided in this Agreement,
immediately prior to the consummation of the Acquisition, will constitute
the legal, valid and binding obligations of Finance, enforceable against
Finance in accordance with their terms, and immediately following the
consummation of the Acquisition, will constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms except that, in each case, the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, and (ii) general principles
of equity and the discretion of the court before which any proceeding
therefor may be brought, and will be entitled to the benefits of the
Indenture and the Registration Rights Agreement; the Guarantees, as of the
Closing Date, will have been duly authorized by each Guarantor and upon the
due issuance and delivery of the related Notes and the due endorsement of
the Guarantees thereon, will have been duly executed, endorsed and
delivered and will constitute valid and legally binding obligations of each
of the Guarantors, and will be entitled to the benefits of the Indenture;
the Exchange Notes (as defined in the Registration Rights Agreement) have
been duly authorized by Finance and as of the Closing Date, will have been
duly authorized by the Company and, when executed and authenticated in the
manner provided for in the Registration Rights Agreement and the Indenture,
will constitute the legal, valid and binding obligations of Finance, prior
to the execution of the Joinder Agreement, and the Company, following the
execution of the Joinder Agreement, enforceable against Finance or the
Company, as applicable, in accordance with their terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally, and (ii)
general principles of equity and the discretion of the court before which
any proceeding therefor may be brought, and will be entitled to the
benefits of the Indenture and the Registration Rights Agreement; and the
Notes and the Exchange Notes will conform in all material respects to the
descriptions thereof in the Final Memorandum.
(o) The execution, delivery and performance by Finance, the Company
and each Guarantor of the Transaction Documents, the issuance and sale of
the Notes and the compliance by Finance, the Company and each Guarantor
with all of the provisions of the Notes, the Indenture, the Registration
Rights Agreement and this Agreement and the consummation of the
transactions contemplated hereby and thereby will not (i) conflict with,
result in a breach or violation of, or constitute a default under, any
indenture, mortgage, deed of trust or loan agreement, stockholders'
agreement or any other agreement or instrument to which Finance, the
Company or any of its subsidiaries is a party or by which Finance, the
Company or any of its subsidiaries is bound or any of their respective
properties are subject (except such as will not individually or in the
aggregate have a Material Adverse Effect), or with the certificate of
incorporation or by-laws of Finance, the Company or any of its
subsidiaries, or any statute, rule or regulation or any
-6-
judgment, order or decree of any governmental authority or court or any
arbitrator applicable to Finance, the Company or any of its subsidiaries,
or (ii) require the consent, approval, authorization, order, registration
or filing or qualification with, any governmental authority or court, or
body or arbitrator having jurisdiction over Finance, the Company or any of
its subsidiaries (other than those consents, approvals, authorizations,
orders, registrations or filings or qualifications that have been obtained
prior to delivery of the Notes), except such as may be required by the
securities or Blue Sky laws of the various states in connection with the
offer or sale of the Notes and by Federal and state securities laws with
respect to the obligations of Finance, the Company and the Guarantors under
the Registration Rights Agreement.
(p) No legal or governmental proceeding or investigation is pending
or, to the knowledge of Finance and, as of the Closing Date, the Company,
threatened to which Finance, the Company or any of its subsidiaries is a
party or to which any of the properties of Finance, the Company or any of
its subsidiaries is subject, other than proceedings accurately described in
the Final Memorandum that, if determined adversely to Finance, the Company
or any of its subsidiaries, would not, singly or when aggregated with other
proceedings based on the same facts, would result in a Material Adverse
Effect.
(q) Each of the Company and each Guarantor is not now nor after giving
effect to the issuance of the Notes and the execution, delivery and
performance of the Transaction Documents and the consummation of the
transactions contemplated thereby or described in the Preliminary
Memorandum or the Final Memorandum will be (in each case on a consolidated
basis) (i) insolvent, (ii) left with unreasonably small capital with which
to engage in its anticipated business or (iii) incurring debts or other
obligations beyond its ability to pay such debts or obligations as they
become due.
(r) None of Finance, the Company and its Affiliates (as defined in
Rule 501(b) of Regulation D under the Securities Act ("Regulation D")) have
distributed and, prior to the later of (i) the Closing Date and (ii) the
completion of the distribution of the Notes, will distribute any offering
material in connection with the offering and sale of the Notes other than
the Preliminary Memorandum, the Final Memorandum or any amendment or
supplement thereto.
(s) The Company and its subsidiaries have not sustained, since the
date of the latest audited financial statements included in the Final
Memorandum, any loss or interference with its business or properties from
fire, explosion, flood, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action,
order or decree (whether domestic or foreign) otherwise than as set forth
in the Final Memorandum; and, since such date, there has not occurred any
change or development having a Material Adverse Effect.
(t) The statements set forth in the offering memorandum under the
caption "Description of Notes," insofar as they purport to constitute a
summary of the terms of the Notes, the Guarantees and the Indenture, and
under the captions "Description of Certain Indebtedness," "Exchange Offer;
Registration Rights" and "Material United States Federal Tax
Considerations," insofar as they purport to describe the provisions of
-7-
the laws and documents referred to therein, are accurate, complete and fair
in all material respects.
(u) The Company and its subsidiaries have good and marketable title in
fee simple to all items of real property and good and marketable title to
all personal property owned by each of them free and clear of any pledge,
lien, encumbrance, security interest or other defect or claim of any third
party, except as described in the Final Memorandum or to the extent the
failure to have such title or the existence of such pledges, liens,
encumbrances, security interests, defects or claims would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect. Any property leased by the Company and its subsidiaries is held
under valid, subsisting and enforceable leases, and there is no default
under any such lease or any other event that with notice or lapse of time
or both would constitute a default thereunder.
(v) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section
4975 of the Internal Revenue Code of 1986, as amended from time to time
(the "Code")) or "accumulated funding deficiency" (as defined in Section
302 of ERISA) or any of the events set forth in Section 4043(c) of ERISA
(other than events with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived) has occurred, exists or is
reasonably expected to occur with respect to any employee benefit plan (as
defined in Section 3(3) of ERISA) which the Company or any of its
subsidiaries maintains, contributes to or has any obligation to contribute
to, or with respect to which the Company or any of its subsidiaries has any
liability, direct or indirect, contingent or otherwise (a "Plan"); each
Plan is in compliance with its terms and applicable law, including ERISA
and the Code (except where the failure to comply could not have a Material
Adverse Effect); none of the Company or any of its subsidiaries has
incurred or expects to incur liability under Title IV of ERISA with respect
to the termination of, or withdrawal from, any Plan; and each Plan that is
intended to be qualified under Section 401(a) of the Code is so qualified
and has received a favorable determination letter and nothing has occurred,
whether by action or failure to act, which could reasonably be expected to
cause the loss of such qualification.
(w) Except as disclosed in each Memorandum, no labor dispute with the
employees of the Company or any of its subsidiaries exists, is imminent or
is threatened which could reasonably be expected to result in a Material
Adverse Effect.
(x) The Company and each of its subsidiaries owns or otherwise
possesses adequate rights to use all material patents, trademarks, service
marks, trade names and copyrights, all applications and registrations for
each of the foregoing, and all other material proprietary rights and
confidential information necessary to conduct their respective businesses
as currently conducted; none of the Company or any of its subsidiaries has
received any written notice, or is otherwise aware, of any infringement of
or conflict with the rights of any third party with respect to any of the
foregoing.
-8-
(y) Each of the Company and its subsidiaries carries insurance in such
amounts and covering such risks as it believes to be consistent with
industry practice to protect the Company and its Subsidiaries and their
respective businesses.
(z) The Company and each of its subsidiaries has complied with all
laws, ordinances, regulations and orders applicable to the Company and its
subsidiaries and their respective businesses, and none of the Company or
any of its subsidiaries has received any written notice to the contrary;
and each of the Company and its subsidiaries possesses all certificates,
authorizations, permits, licenses, approvals, orders and franchises
(collectively, "Licenses") necessary to conduct their respective businesses
in the manner and to the full extent now operated or proposed to be
operated as described in the Final Memorandum, in each case issued by the
appropriate federal, state, local or foreign governmental or regulatory
authorities (collectively, the "Agencies"), and each other federal, state
and local agency the regulations of which are applicable to the businesses
or products of the Company and its subsidiaries, except where the failure
to so comply or to possess such Licenses could not have a Material Adverse
Effect. The Licenses are in full force and effect and no proceeding has
been instituted or threatened in writing which in any manner affects or
calls into question the validity or effectiveness thereof.
(aa) The Company is in compliance in all material respects with the
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act"), to
the extent currently applicable.
(bb) The Company and each of its subsidiaries is and has been in
compliance with all applicable laws, statutes, ordinances, rules,
regulations, orders, judgments, decisions, decrees, standards, and
requirements relating to: human health and safety; pollution; management,
disposal or release of any chemical substance, product or waste; and
protection, cleanup, remediation or corrective action relating to the
environment or natural resources ("Environmental Law");
(i) The Company and each of its subsidiaries has obtained and is
in compliance with the conditions of all permits, authorizations,
licenses, approvals and variances necessary under any Environmental
Law for the continued conduct in the manner now conducted of their
respective businesses ("Environmental Permits");
(ii) There are no past or present conditions or circumstances,
including but not limited to pending changes in any Environmental Law
or Environmental Permits, that are likely to interfere with the
conduct of the business of the Company and its subsidiaries in the
manner now conducted or which would interfere with compliance with any
Environmental Law or Environmental Permits; and
(iii) There are no past or present conditions or circumstances
at, or arising out of, their respective businesses, assets and
properties of the Company and each of its subsidiaries or any
business, assets or properties formerly leased, operated or owned by
the Company or any of its subsidiaries, including but not limited to
on-site or off-site disposal or release of any chemical substance,
product or waste, which may give rise to (A) liabilities or
obligations for any
-9-
cleanup, remediation or corrective action under any Environmental Law;
(B) claims arising under any Environmental Law for personal injury,
property damage, or damage to natural resources; (C) liabilities or
obligations incurred by the Company or its subsidiaries or any other
Guarantor to comply with any Environmental Law; or (D) fines or
penalties arising under any Environmental Law;
except in each case for any noncompliance or conditions or circumstances
that, singly or in the aggregate, would not result in a Material Adverse
Effect.
(cc) Neither Finance, the Company nor any of its subsidiaries is in
violation of its certificate of incorporation or its bylaws; and no default
or breach exists, and no event has occurred that, with notice or lapse of
time or both, would constitute a default in the due performance and
observation of any term, covenant or condition of any indenture, mortgage,
deed of trust, lease, loan agreement, stockholders' agreement or any other
agreement or instrument ("Contracts") to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of their respective properties are subject except
such default or breach in the due performance and observation of the terms
of Contracts that, singly or in the aggregate, would not result in a
Material Adverse Effect.
(dd) The Company and each of its subsidiaries has filed all material
foreign, federal, state and local tax returns that are required to be filed
or has requested extensions thereof and has paid all material taxes
required to be paid by it and any other assessment, fine or penalty
relating to taxes levied against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith and for which the
Company and its subsidiaries retain adequate reserves in accordance with
generally accepted accounting principles.
(ee) Except as disclosed in the Final Memorandum, there are no
contracts, agreements or understandings between Finance, the Company or any
of its subsidiaries and any person granting such person the right to
require Finance, the Company or any of its subsidiaries to file a
registration statement under the Securities Act or to require Finance or
the Company to include any securities held by any person in any
registration statement filed by Finance or the Company under the Securities
Act.
(ff) Neither Finance, the Company nor any Guarantor is, nor after
giving effect to the offering and sale of the Notes and the application of
the proceeds thereof as described in the Final Memorandum under the caption
"Use of Proceeds" will be, an "investment company" or "promoter" or
"principal underwriter" for an "investment company", within the meaning of
the Investment Company Act of 1940, as amended (the "Investment Company
Act").
(gg) Within the preceding six months, none of Finance, the Company or
any of its Affiliates has, directly or through any agent, made offers or
sales of any security of the Company, or solicited offers to buy or
otherwise negotiated in respect of any securities of
-10-
the Company of the same or a similar class as the Notes, other than the
Notes offered or sold to the Initial Purchasers hereunder.
(hh) None of Finance, the Company or any of its Affiliates has,
directly or through any person acting on its or their behalf (other than
the Initial Purchasers, as to which no statement is made), offered,
solicited offers to buy or sold the Notes by any form of general
solicitation or general advertising (within the meaning of Regulation D) or
in any manner involving a public offering within the meaning of Section
4(2) of the Securities Act.
(ii) None of Finance, the Company, any of its Affiliates, nor any
person acting on its or their behalf (other than the Initial Purchasers, as
to which no statement is made), has engaged in any directed selling efforts
with respect to the Notes, and each of them has complied with the offering
restrictions requirement of Regulation S. Terms used in this paragraph have
the meanings given to them by Regulation S.
(jj) None of Finance, the Company or any of its Affiliates has taken,
directly or indirectly, any action designed to cause or result in, or which
has constituted or which might reasonably be expected to cause or result
in, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Notes; nor has the Company
or any of its Affiliates paid or agreed to pay to any person any
compensation for soliciting another to purchase any securities of the
Company (except as contemplated by this Agreement).
(kk) The Notes satisfy the eligibility requirements of Rule 144A(d)(3)
under the Securities Act.
(ll) Assuming the accuracy of the representations and warranties of
the Initial Purchasers in Section 3 hereof and compliance by the Initial
Purchasers with the procedures set forth in Section 3 hereof, it is not
necessary in connection with the offer, sale and delivery of the Notes to
the Initial Purchasers in the manner contemplated by this Agreement and
disclosed in the Preliminary Memorandum and the Final Memorandum to
register the Notes or the related Guarantees under the Securities Act or to
qualify the Indenture under the Trust Indenture Act.
(mm) None of the Transactions (including, without limitation, the use
of proceeds from the sale of the Notes) will violate or result in a
violation of Section 7 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") or any regulation promulgated thereunder, including,
without limitation, Regulations T, U and X of the Board of Governors of the
Federal Reserve System.
(nn) There are, and during the last 12 months there have been, no
material disputes between the Company and any of its ten largest suppliers
over such 12-month period (as measured by dollar volume of goods purchased
by the Company) ("Material Suppliers") or ten largest customers over such
12-month period (as measured by dollar volume of goods sold by the Company)
("Material Customers"). To the knowledge of the Company, its relations with
its Material Suppliers and Material Customers are good,
-11-
and the Company has received no notice, and is not otherwise aware, of any
anticipated dispute with any of its Material Suppliers and Material
Customers, or that (i) any Material Supplier intends to cease or reduce its
supply to the Company or (ii) any Material Customer intends to cease or
reduce its purchases from the Company.
(oo) Except as disclosed in the Final Memorandum, there are no
agreements, arrangements or understandings that will require the payment of
any commissions, fees or other remuneration to any investment banker,
broker, finder or intermediary in connection with the transactions
contemplated by this Agreement.
(pp) The Company does not intend to treat any of the transactions
contemplated by the Note Documents as being a "reportable transaction"
(within the meaning of Treasury Regulation Section 1.6011-4). In the event
the Company determines to take any action inconsistent with such intention,
it will promptly notify the Representative thereof. Accordingly, if the
Company so notifies the Representative, the Company acknowledges that one
or more of the Initial Purchasers may treat its purchase and resale of
Notes as part of a transaction that is subject to Treasury Regulation
Section 301.6112-1, and such Initial Purchaser or Initial Purchasers, as
applicable, will maintain the lists and other records required by such
Treasury Regulation.
(qq) There are no stamp or other issuance or transfer taxes or duties
or other similar fees or charges required to be paid in connection with the
execution and delivery of this Agreement or the issuance or sale by the
Company of the Notes.
Each certificate signed by any officer of Finance, the Company or the Guarantors
and delivered to the Initial Purchasers or their counsel shall be deemed to be a
representation and warranty by Finance, the Company or the Guarantors, as the
case may be, to the Initial Purchasers as to the matters covered thereby.
2. Purchase, Sale and Delivery of the Notes. On the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, Finance agrees to issue
and sell $190,000,000 aggregate principal amount of Notes, and each of the
Initial Purchasers, severally and not jointly, agree to purchase from Finance
the principal amount of Notes set forth opposite the name of such Initial
Purchaser in Schedule I hereto at a purchase price equal to 95.897% of the
principal amount thereof (the "Purchase Price"). One or more certificates in
definitive form or global form, as instructed by the Representative for the
Notes that the Initial Purchasers have severally agreed to purchase hereunder,
and in such denomination or denominations and registered in such name or names
as the Representative requests upon notice to Finance not later than one full
business day prior to the Closing Date (as defined below), shall be delivered by
or on behalf of Finance to the Representative for the respective accounts of the
Initial Purchasers, with any transfer taxes payable in connection with the
transfer of the Notes to the Initial Purchasers duly paid, against payment by or
on behalf of the Initial Purchasers of the Purchase Price therefor by wire
transfer in Federal or other funds immediately available to the account of
Finance. Such delivery of and payment for the Notes shall be made at the offices
of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP ("Counsel for the Company"), ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ at 9:00 A.M., New York City time, on September 21, 2005, or at
such other place, time or date as the Representative and Finance may agree upon,
such time and date of delivery against payment being herein referred to as the
-12-
"Closing Date". Finance will make such certificate or certificates for the Notes
available for examination by the Initial Purchasers at the New York, New York
offices of Counsel for the Company not later than 9:00 A.M., New York City time
on the business day prior to the Closing Date.
3. Offering of the Notes and the Initial Purchasers' Representations
and Warranties. Each of the Initial Purchasers, severally and not jointly,
represent and warrant to and agree with Finance, prior to the Closing Date, and
the Company and the Guarantors, on the Closing Date, that:
(a) It is a qualified institutional buyer as defined in Rule 144A
under the Securities Act (a "QIB").
(b) It will solicit offers for such Notes only from, and will offer
such Notes only to, persons that it reasonably believes to be (A) in the
case of offers inside the United States, QIBs or (B) in the case of offers
outside the United States, to persons other than U.S. persons ("foreign
purchasers", which term shall include dealers or other professional
fiduciaries in the United States acting on a discretionary basis for
foreign beneficial owners (other than an estate or trust)) in reliance upon
Regulation S under the Securities Act that, in each case, in purchasing
such Notes are deemed to have represented and agreed as provided in the
Final Memorandum under the caption "Notice to Investors".
(c) It will not offer or sell the Notes using any form of general
solicitation or general advertising (within the meaning of Regulation D) or
in any manner involving a public offering within the meaning of Section
4(2) under the Securities Act.
(d) With respect to offers and sales outside the United States:
(i) at or prior to the confirmation of any sale of any Notes sold
in reliance on Regulation S, it will have sent to each distributor,
dealer or other person receiving a selling concession, fee or other
remuneration that purchases Notes from it during the distribution
compliance period (as defined in Regulation S) a confirmation or
notice substantially to the following effect:
"The Notes covered hereby have not been registered under the
U.S. Securities Act of 1933, as amended (the "Securities Act"),
and may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons, (i) as part of their
distribution at any time; or (ii) otherwise until 40 days after
the later of the commencement of the offering, except in either
case in accordance with Regulation S or Rule 144A under the
Securities Act. Terms used above have the meanings given to them
by Regulation S"; and
(ii) such Initial Purchaser has offered the Notes and will offer
and sell the Notes (A) as part of its distribution at any time and (B)
otherwise until 40 days after the later of the commencement of the
offering and the Closing Date, only in
-13-
accordance with Rule 903 of Regulation S or as otherwise permitted in
Section 3(b); accordingly, such Initial Purchaser has not engaged nor
will engage in any directed selling efforts (within the meaning of
Regulation S) with respect to the Notes, and such Initial Purchasers
has complied and will comply with the offering restrictions
requirements of Regulation S.
Terms used in this Section 3(d) have the meanings given to them by
Regulation S.
4. Covenants of the Company. To the extent applicable, Finance agrees
that and, upon execution and delivery of the Joinder Agreement, the Company and
the Guarantors, jointly and severally agree, in each case, with each Initial
Purchaser that:
(a) The Issuer will prepare the Final Memorandum in the form approved
by the Representative and will not amend or supplement the Final Memorandum
without first furnishing to the Representative a copy of such proposed
amendment or supplement and will not use any amendment or supplement to
which the Representative may reasonably object.
(b) The Issuer will promptly furnish to the Initial Purchasers and to
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP ("Counsel for the Initial Purchasers"), without
charge, as many copies of the Final Memorandum and any amendments and
supplements thereto as they reasonably may request.
(c) At any time prior to the completion of the distribution of the
Notes by the Initial Purchasers, if any event occurs or condition exists as
a result of which the Final Memorandum, as then amended or supplemented,
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it should
be necessary to amend or supplement the Final Memorandum to comply with
applicable law, the Issuer will promptly (i) notify the Initial Purchasers
of the same; (ii) subject to the requirements of paragraph (a) of this
Section 4, prepare and provide to the Initial Purchasers, at its own
expense, an amendment or supplement to the Final Memorandum so that the
statements in the Final Memorandum as so amended or supplemented will not,
in the light of the circumstances when the Final Memorandum is delivered to
a purchaser, be misleading in any material respects or so that the Final
Memorandum, as amended or supplemented, will comply with applicable law;
and (iii) supply any supplemented or amended Final Memorandum to the
Initial Purchasers and Counsel for the Initial Purchasers, without charge,
in such quantities as may be reasonably requested.
(d) The Issuer will cooperate with the Initial Purchasers in arranging
for the qualification of the Notes for offering and sale under the
securities or "Blue Sky" laws of such jurisdictions as the Initial
Purchasers may designate and will continue such qualifications in effect
for as long as may be necessary to complete the resale of the Notes;
provided, however, that in connection therewith, none of Finance, the
Company nor any of the Guarantors shall be required to qualify as a foreign
corporation or to execute a general consent to service of process in any
jurisdiction or subject itself to taxation in any such jurisdiction where
it is not then so subject.
-14-
(e) At any time prior to the completion of the distribution of the
Notes by the Initial Purchasers, the Issuer will deliver to the Initial
Purchasers and, prior to the Closing Date, will use its best efforts to
ensure that the Company and the Guarantors will deliver to the Initial
Purchaser, such additional information concerning the business and
financial condition of the Company as the Initial Purchasers may from time
to time reasonably request and whenever it or any of its subsidiaries
publishes or makes available to the public (by filing with any regulatory
authority or securities exchange or by publishing a press release or
otherwise) any information that would reasonably be expected to be material
in the context of the issuance of the Notes under this Agreement, shall
promptly notify the Initial Purchasers as to the nature of such information
or event. The Issuer will likewise notify the Initial Purchasers of (i) any
decrease in the rating of the Notes or any other debt securities of the
Company by any nationally recognized statistical rating organization (as
defined in Rule 436(g)(2) under the Securities Act) or (ii) any notice or
public announcement given of any intended or potential decrease in any such
rating or that any such securities rating agency has under surveillance or
review, with possible negative implications, its rating of the Notes, as
soon as the Issuer becomes aware of any such decrease, notice or public
announcement. The Issuer will also, for a period of two years from the
Closing Date, deliver to the Initial Purchasers, as soon as available and
without request, copies of any reports and financial statements furnished
to or filed with the Commission (except to the extent otherwise available
on ▇▇▇▇▇).
(f) The Issuer will not, and, prior to the Closing Date, Finance will
use its best efforts to ensure that the Company and the Guarantors will
not, or permit any of their respective Affiliates to, resell any of the
Notes that have been acquired by any of them, other than pursuant to an
effective registration statement under the Securities Act or in accordance
with Rule 144 under the Securities Act.
(g) Except as contemplated in the Registration Rights Agreement, none
of the Issuer nor any of its Affiliates and, prior to the Closing Date,
Finance will use its best efforts to ensure that none of the Company and
the Guarantors, nor any person acting on its or their behalf (other than
the Initial Purchasers or any of their respective Affiliates, as to which
no statement is made) will, directly or indirectly, make offers or sales of
any security, or solicit offers to buy any security, under circumstances
that would require the registration of the Notes under the Securities Act.
(h) None of the Issuer or any of its Affiliates, nor any person acting
on its or their behalf (other than the Initial Purchasers or any of their
respective Affiliates, as to which no statement is made), will, and
Finance, prior to the Closing Date, will use its best efforts to ensure
that none of the Company or the Guarantors will, solicit any offer to buy
or offer to sell the Notes by means of any form of general solicitation or
general advertising (within the meaning of Regulation D) or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act.
(i) None of the Issuer or any of its Affiliates and, prior to the
Closing Date, Finance will use its best efforts to ensure that none of the
Company or the Guarantors, nor any person acting on its or their behalf
(other than the Initial Purchasers or any of their respective Affiliates,
as to which no statement is made), will engage in any directed
-15-
selling efforts (within the meaning of Regulation S) with respect to the
Notes, and each of them will comply with the offering restrictions
requirements of Regulation S.
(j) None of the Issuer or any of its Affiliates and, prior to the
Closing Date, Finance will use its best efforts to ensure that none of the
Company or the Guarantors, nor any person acting on its or their behalf
(other than the Initial Purchasers or any of their respective Affiliates,
as to which no statement is made), will sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any securities of the
same or a similar class as the Notes, other than the Notes offered or sold
to the Initial Purchasers hereunder in a manner which would require the
registration under the Securities Act of the Notes.
(k) So long as any of the Notes are "restricted securities" within the
meaning of Rule 144(a)(3) under the Securities Act, at any time that the
Issuer is not then subject to Section 13 or 15(d) of the Exchange Act, the
Issuer will provide at its expense to each holder of the Notes and to each
prospective purchaser (as designated by such holder) of the Notes, upon the
request of such holder or prospective purchaser, any information required
to be provided by Rule 144A(d)(4) under the Securities Act.
(l) The Issuer will apply the net proceeds from the sale of the Notes
as set forth under "Use of Proceeds" in the Final Memorandum.
(m) Until completion of the distribution, neither the Issuer nor any
of its Affiliates will take, and, prior to the Closing Date, Finance will
use its best efforts to ensure that none of the Company or the Guarantors,
nor any of their respective affiliates, will take, directly or indirectly,
any action designed to cause or result in, or which has constituted or
which might reasonably be expected to cause or result in, stabilization or
manipulation of the price of any security of the Issuer to facilitate the
sale or resale of the Notes.
(n) Each Note will bear a legend substantially to the following effect
until such legend shall no longer be necessary or advisable because the
Notes are no longer subject to the restrictions on transfer described
therein:
THIS NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"). THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT, AND
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER, OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF, THE
SECURITIES ACT, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION AND IN
ACCORDANCE WITH
-16-
TRANSFER RESTRICTIONS CONTAINED IN THE INDENTURE UNDER WHICH THIS NOTE
WAS ISSUED AND THE OFFERING MEMORANDUM PURSUANT TO WHICH THIS NOTE WAS
ORIGINALLY SOLD. THE HOLDER OF THE NOTE WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY A PROPOSED TRANSFEREE OF THE NOTICE OF
THE RESALE RESTRICTIONS APPLICABLE TO THE NOTE.
THIS SECURITY MAY NOT BE ACQUIRED OR HELD WITH THE ASSETS OF (I) AN
"EMPLOYEE BENEFIT PLAN" (AS DEFINED IN THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA")) THAT IS SUBJECT TO ERISA,
(II) A "PLAN" DESCRIBED IN SECTION 4975 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE "CODE"), (III) ANY ENTITY DEEMED TO HOLD
"PLAN ASSETS" OF ANY OF THE FOREGOING BY REASON OF AN EMPLOYEE BENEFIT
PLAN'S OR PLAN'S INVESTMENT IN SUCH ENTITY, OR (IV) A GOVERNMENTAL
PLAN OR CHURCH PLAN SUBJECT TO APPLICABLE LAW THAT IS SUBSTANTIALLY
SIMILAR TO THE FIDUCIARY RESPONSIBILITY OR PROHIBITED TRANSACTION
PROVISIONS OF ERISA OR SECTION 4975 OF THE CODE ("SIMILAR LAW"),
UNLESS THE ACQUISITION AND HOLDING OF THIS SECURITY BY THE PURCHASER
OR TRANSFEREE, THROUGHOUT THE PERIOD THAT IT HOLDS THIS SECURITY, ARE
EXEMPT FROM THE PROHIBITED TRANSACTION RESTRICTIONS UNDER ERISA AND
SECTION 4975 OF THE CODE OR ANY PROVISIONS OF SIMILAR LAW, AS
APPLICABLE, PURSUANT TO ONE OR MORE PROHIBITED TRANSACTION STATUTORY
OR ADMINISTRATIVE EXEMPTIONS. BY ITS ACQUISITION OR HOLDING OF THIS
SECURITY, EACH PURCHASER AND TRANSFEREE WILL BE DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT THE FOREGOING REQUIREMENTS HAVE BEEN
SATISFIED.
(o) The Issuer will not, and, prior to the Closing Date, Finance will
use its best efforts to ensure that the Company and the Guarantors will
not, directly or indirectly, offer, sell, contract to sell or otherwise
dispose of any debt securities of the Issuer or warrants to purchase debt
securities of the Issuer substantially similar to the Notes (other than the
Notes offered pursuant to this Agreement) for a period of 180 days after
the date hereof, without the prior written consent of Wachovia Capital
Markets, LLC.
(p) The Issuer will, promptly after it has notified the Representative
of any intention by the Company to treat the Transactions as being a
"reportable transaction" (within the meaning of Treasury Regulation Section
1.6011-4), deliver a duly completed copy of IRS Form 8886 or any successor
form to the Representative.
-17-
(q) The Issuer acknowledges and agrees that the Initial Purchasers are
acting solely in the capacity of an arm's length contractual counterparty
to the Issuer with respect to the offering of the Notes and the Guarantees
contemplated hereby (including in connection with determining the terms of
the offering) and not as a financial advisor or a fiduciary to, or an agent
of, the Issuer or any other person. Additionally, no Initial Purchaser is
advising the Issuer or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Issuer shall
consult with its own advisors concerning such matters and shall be
responsible for making their own independent investigation and appraisal of
the transactions contemplated hereby, and the Initial Purchasers shall have
no responsibility or liability to the Issuer with respect thereto. Any
review by the Initial Purchasers of the Issuer, the transactions
contemplated hereby or other matters relating to such transactions will be
performed solely for the benefit of the Initial Purchasers and shall not be
on behalf of the Company.
5. Expenses.
(a) The Company and the Guarantors will pay or cause to be paid
(provided that, if the transactions contemplated by this agreement are not
consummated, Finance will pay or cause to be paid) all expenses incident to the
performance of its obligations under this Agreement, including: (i) the fees,
disbursements and expenses of Counsel for Finance, the Company and the Company's
accountants in connection with the issuance and sale of the Notes and all other
fees or expenses in connection with the preparation of each Memorandum and all
amendments and supplements thereto, including all printing costs associated
therewith, and the delivering of copies thereof to the Initial Purchasers, (ii)
all costs and expenses related to the transfer and delivery of the Notes to the
Initial Purchasers, including any transfer or other taxes payable thereon, (iii)
the cost of producing any Blue Sky or legal investment memorandum in connection
with the offer and sale of the Notes under state securities laws and all
expenses in connection with the qualification of the Notes for offer and sale
under state securities laws as provided in Section 4(d) hereof, including filing
fees and the reasonable fees and disbursements of Counsel for the Initial
Purchasers in connection with such qualification and in connection with the Blue
Sky or legal investment memorandum, (iv) any fees charged by rating agencies for
the rating of the Notes, (v) the fees and expenses, if any, incurred in
connection with the admission of the Notes for trading in PORTAL or any
appropriate market system, (vi) the costs and charges of the Trustee and any
transfer agent, registrar or depositary, (vii) the cost of the preparation,
issuance and delivery of the Notes, (viii) all costs and expenses relating to
investor presentations, including any "road show" presentations undertaken in
connection with the marketing of the offering of the Notes, including, without
limitation, expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection with the
road show presentations that have been approved in writing by the Company or
Finance, travel and lodging expenses of the representatives (including the
Initial Purchasers) and officers of the Company and any such consultants, and
the cost of any aircraft chartered in connection with the road show approved by
the Company or Finance in writing, and (ix) all other costs and expenses
incident to the performance of the obligations of the Company or Finance
hereunder for which provision is not otherwise made in this Section.
(b) If the sale of the Notes provided for herein is not consummated
because any condition to the obligations of the Initial Purchasers set forth in
Section 6 hereof is not satisfied, because this Agreement is terminated pursuant
to Section 9 hereof or because of any
-18-
failure, refusal or inability on the part of Finance to perform all obligations
and satisfy all conditions on its part to be performed or satisfied hereunder
other than by reason of a default by any of the Initial Purchasers, Finance will
reimburse the Initial Purchasers upon demand for all reasonable and documented
out-of-pocket expenses (including reasonable counsel fees and disbursements)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Notes;
6. Conditions to the Initial Purchaser's Obligations. The obligations
of the several Initial Purchasers to purchase and pay for the Notes shall be
subject to the accuracy of the representations and warranties of the Issuer in
Section 1 hereof, in each case as of the date hereof and as of the Closing Date,
as if made on and as of the Closing Date, to the accuracy of the statements of
the Issuer's officers made pursuant to any certificate delivered in accordance
with the provisions hereof, to the performance by the Issuer of its covenants
and agreements hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received an opinion, dated the
Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, Counsel for Finance, the Company
and the Guarantors, in form and substance satisfactory to the Initial
Purchasers, substantially in the form set forth in Exhibit A hereto.
(b) The Initial Purchasers shall have received an opinion, dated the
Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Counsel for the Initial
Purchasers, with respect to the issuance and sale of the Notes and such
other related matters as the Initial Purchasers may reasonably require, and
Finance shall have furnished to such counsel such documents as it may
reasonably request for the purpose of enabling it to pass upon such
matters. In rendering such opinion, such counsel may rely as to certain
matters of law upon the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP referred to in
Section 6(a).
(c) The Initial Purchasers shall have received on each of the date
hereof and the Closing Date a letter, dated the date hereof or the Closing
Date, as the case may be, in form and substance reasonably satisfactory to
the Initial Purchasers and Counsel for the Initial Purchasers, from
PricewaterhouseCoopers LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in each Memorandum. References
to the Final Memorandum in this paragraph (c) with respect to either letter
referred to above shall include any amendment or supplement thereto at the
date of such letter.
(d) (i) None of the Company or any of its subsidiaries shall have
sustained, since the date of the latest audited financial statements
included in the Final Memorandum (exclusive of any amendment or supplement
thereto), any loss or interference with their respective businesses or
properties from fire, explosion, flood, accident or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree (whether domestic or foreign)
otherwise than as set forth in the Final Memorandum or as except as would
otherwise not have a Material Adverse Effect; and (ii) since the respective
dates as of which information is given in the Preliminary Memorandum or the
Final Memorandum, there
-19-
shall not have been any change in the capital stock or long-term debt of
the Company and its subsidiaries, or any change in or effect on or any
development having a prospective change in or effect on the business,
operations, properties, assets, liabilities, stockholders' equity,
earnings, condition (financial or otherwise), results of operations or
management of the Company and its subsidiaries, whether or not in the
ordinary course of business, otherwise than as set forth in each such
Memorandum, the effect of which, in any such case described in clause (ii),
is, in the sole judgment of the Representative, so material and adverse as
to make it impracticable or inadvisable to market the Notes on the terms
and in the manner described in the Final Memorandum (exclusive of any
amendment or supplement thereto).
(e) The Initial Purchasers shall have received a certificate, dated
the Closing Date and in form and substance reasonably satisfactory to the
Initial Purchasers, of the President or Vice President of the Issuer as to
the accuracy of the representations and warranties of the Issuer in this
Agreement at and as of the Closing Date; that the Issuer has performed all
covenants and agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Date; and as to the
matters set forth in Section 6(d) (except that, with respect to the matters
set forth in Section 6(d), such matters shall be to the best of the
Issuer's knowledge).
(f) The Initial Purchasers shall have received a counterpart of the
Registration Rights Agreement, which shall have been executed and delivered
by a duly authorized officer of the Company, each of the Guarantors and
Finance.
(g) The Indenture shall have been duly executed and delivered by the
Company, the Trustee and Finance, the Notes shall have been duly executed
and delivered by Finance and duly authenticated by the Trustee and the
Guarantees shall have been duly executed and delivered by each of the
Guarantors.
(h) The Notes shall be eligible for clearance and settlement through
the Depository Trust Company, Clearstream Banking and the Euroclear System.
(i) The Company and the Guarantors shall have executed and delivered
the Credit Documents in form and substance reasonably satisfactory to the
Initial Purchasers and the Initial Purchasers shall have received copies
thereof. Each condition to the closing contemplated by the Credit Documents
(other than the issuance and sale of the Notes and Guarantees pursuant
hereto and the Acquisition) will, on or prior to the Closing Date, have
been satisfied or waived. There shall not exist at, and as of, the Closing
Date (after giving effect to the transactions contemplated by this
Agreement) any conditions that would constitute a default (or an event that
with notice or the lapse of time, or both, would constitute a default)
under the Credit Documents.
(j) The Company and the Guarantors, to the extent applicable, shall
have executed and delivered the Acquisition Documents in form and substance
reasonably satisfactory to the Initial Purchasers and the Initial
Purchasers shall have received copies thereof. Each condition to the
closing contemplated by the Acquisition Documents (other
-20-
than the issuance and sale of the Notes and Guarantees pursuant hereto and
the effectiveness of the Credit Documents) will, on or prior to the Closing
Date, have been satisfied or waived. There shall not exist at, and as of,
the Closing Date (after giving effect to the transactions contemplated by
this Agreement) any conditions that would constitute a default (or an event
that with notice or the lapse of time, or both, would constitute a default)
under the Acquisition Documents.
(k) On or before the Closing Date, the Initial Purchasers and Counsel
for the Initial Purchasers shall have received such further certificates,
documents or other information as they may have reasonably requested from
the Company.
(l) At the Closing Date, the Company and the Guarantors shall have
entered into the Joinder Agreement and the Representative shall have
received counterparts, conformed as executed, thereof.
7. Indemnification and Contribution.
(a) Finance agrees and, upon due authorization, execution and delivery
of the Joinder Agreement, the Company and each Guarantor will jointly and
severally, agree to indemnify and hold harmless each Initial Purchaser, its
affiliates, directors and officers and each person, if any, who controls (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) any Initial Purchaser against any losses, claims, damages or liabilities,
joint or several, to which such Initial Purchaser or such other person may
become subject, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Preliminary Memorandum or the Final Memorandum or any amendment or supplement
thereto; or (ii) the omission or alleged omission to state in the Preliminary
Memorandum or the Final Memorandum or any amendment or supplement thereto a
material fact necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading, and will reimburse, as
incurred, each Initial Purchaser and each such other person for any legal or
other expenses reasonably incurred by such Initial Purchaser or such other
person in connection with investigating, defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action; provided, however, that the Company, the Guarantors and Finance will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Memorandum, the Final Memorandum or any amendment or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by such Initial Purchasers through the Representative specifically for
use therein as set forth in Section 11 hereof. In addition, the Company, the
Guarantors and Finance, as applicable, shall not be liable under this Section 7
for any settlement of any claim or action effected without their prior written
consent, which shall not be unreasonably withheld.
(b) Each Initial Purchaser, severally and not jointly, will indemnify
and hold harmless as of the date hereof, Finance and, upon execution and
delivery of the Joinder Agreement, the Company and the Guarantors and their
respective affiliates, directors, officers, and each person, if any, who
controls any of Finance, the Company or the Guarantors, as applicable, within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
-21-
Act against any losses, claims, damages or liabilities to which Finance, the
Company, the Guarantors, any such affiliates, directors or officers or such
controlling person may become subject, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in the Preliminary Memorandum or the Final Memorandum or any amendment
or supplement thereto, or (ii) the omission or alleged omission to state in the
Preliminary Memorandum or the Final Memorandum or any amendment or supplement
thereto a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Finance or the Company by
the Initial Purchasers through the Representative specifically for use therein
as set forth in Section 11 hereof and, subject to the limitation set forth
immediately preceding this clause, will reimburse as incurred, any legal or
other expenses reasonably incurred by Finance, the Company or the Guarantors or
any such affiliates, directors or officers or such controlling person in
connection with investigating, defending against or appearing as a third-party
witness in connection with, any such loss, claim, damage, liability or action in
respect thereof.
(c) Promptly after receipt by any person to whom indemnity may be
available under this Section 7 (the "indemnified party") of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against any person from whom indemnity may be sought under
this Section 7 (the "indemnifying party"), notify such indemnifying party in
writing of the commencement thereof; but the failure so to notify such
indemnifying party will not relieve such indemnifying party from any liability
which it may have to such indemnified party otherwise than under this Section 7.
In case any such action is brought against any indemnified party, and such
indemnified party notifies the relevant indemnifying party of the commencement
thereof, such indemnifying party will be entitled to participate therein and, to
the extent that it may wish, to assume the defense thereof, jointly with any
other indemnifying party similarly notified, with counsel reasonably
satisfactory to such indemnified party; provided, however, that if the named
parties in any such action (including impleaded parties) include both the
indemnified party and the indemnifying party and the indemnified party shall
have concluded, based on advice of outside counsel, that there may be one or
more legal defenses available to it which are different from or additional to
those available to the indemnifying party or that representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from an indemnifying party to an indemnified party of its election
so to assume the defense thereof and approval by such indemnified party of
counsel appointed to defend such action, such indemnifying party will not be
liable to such indemnified party under this Section 7 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof, unless (i) such
indemnified party shall have employed separate counsel in accordance with the
proviso to the immediately preceding sentence (it being understood, however,
that in connection with such action the indemnifying party shall not be liable
for the reasonable expenses of more than one separate counsel (in addition to
one local counsel in any jurisdiction) in any one action or separate but
substantially
-22-
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Initial Purchasers in the case
of paragraph (b) of this Section 7 or the Company or the Guarantors in the case
of paragraph (a) of this Section 7, representing indemnified parties under such
paragraph (a) or paragraph (b), as the case may be, who are parties to such
action or actions) or (ii) such indemnifying party does not promptly retain
counsel reasonably satisfactory to such indemnified party or (iii) such
indemnifying party has authorized the employment of counsel for such indemnified
party at the expense of the indemnifying party. After such notice from an
indemnifying party to an indemnified party, such indemnifying party will not be
liable for the costs and expenses of any settlement of such action effected by
such indemnified party without the written consent of such indemnifying party.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by (i), (ii) or (iii) of the
third sentence of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (x) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (y) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. An indemnifying party will not, without
the prior written consent of the indemnified party, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action,
suit or proceeding in respect of which indemnification may be sought hereunder
(whether or not the indemnified party or any other person that may be entitled
to indemnification hereunder is a party to such claim, action, suit or
proceeding) unless such settlement, compromise or consent includes an
unconditional release of the indemnified party and such other persons from all
liability arising out of such claim, action, suit or proceeding.
(d) (i) In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 7 is unavailable or insufficient,
for any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (including, without limitation, any legal or
other expenses incurred in connection with defending or investigating any action
or claim) (or actions in respect thereof) ("Losses"), Finance, the Company and
the Guarantors, on the one hand, and the Initial Purchasers, on the other, in
order to provide for just and equitable contribution, agree to contribute to the
amount paid or payable by such indemnified party as a result of such Losses to
which Finance, the Company and the Guarantors, on the one hand, and the Initial
Purchasers, on the other, may be subject, in such proportion as is appropriate
to reflect the relative benefits received by Finance, the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other, from the
offering of the Notes or (ii) if the allocation provided by the foregoing clause
(i) is not permitted by applicable law, not only such relative benefits but also
the relative fault of Finance, the Company and the Guarantors, on the one hand,
and the Initial Purchasers, on the other, in connection with the statements or
omissions or alleged statements or omissions that resulted in such Losses. The
relative benefits received by Finance, the Company and the Guarantors, on the
one hand, and the Initial Purchasers, on the other, shall be deemed to be in the
same proportion as the total proceeds from the offering (before deducting
expenses) received by Finance, the Company and the Guarantors bear to the total
discounts and commissions received by the Initial Purchasers from Finance, the
Company and the Guarantors in connection with the purchase of the Notes
hereunder as set forth in the Final Memorandum. The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue
-23-
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by Finance, the Company, the
Guarantors or the Initial Purchasers, the parties' intent, relative knowledge,
access to information and opportunity to correct or prevent such statement or
omission or alleged statement or omission, and any other equitable
considerations appropriate in the circumstances. Finance, the Company, the
Guarantors and the Initial Purchasers agree that it would not be just and
equitable if contribution were determined by pro rata allocation or by any other
method of allocation (even if the Initial Purchasers were treated as one entity
for such purpose) that does not take into account the equitable considerations
referred to in paragraph (d). Notwithstanding any other provision of this
paragraph (d), no Initial Purchaser shall be obligated to make contributions
hereunder that in the aggregate exceed the total underwriting discounts and
commissions received by such Initial Purchaser from Finance, the Company and the
Guarantors in connection with the purchase of the Notes hereunder, and no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Initial Purchasers'
respective obligations to contribute hereunder are several in proportion to
their respective obligations to purchase Notes as set forth on Schedule I hereto
and not joint. For purposes of this paragraph (d), each person, if any, who
controls an Initial Purchaser within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act and each other person listed in Section
7(a) hereof shall have the same rights to contribution as such Initial
Purchaser, and each affiliate, director or officer of Finance, the Company or
any Guarantor and each person, if any, who controls Finance or the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, shall have the same rights to contribution as Finance, the Company
and the Guarantors.
8. Survival. The respective representations, warranties, agreements,
covenants, indemnities and other statements of Finance, the Company, the
Guarantors, their respective officers, and the several Initial Purchasers set
forth in this Agreement or made by or on behalf of them, respectively, pursuant
to this Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of Finance, the Company, the Guarantors,
their respective officers or directors or any controlling person referred to in
Section 7 hereof or any Initial Purchaser and (ii) delivery of and payment for
the Notes. The respective agreements, covenants, indemnities and other
statements set forth in Sections 5, 7, 8, 12, 13, 14 and 15 hereof shall remain
in full force and effect, regardless of any termination or cancellation of this
Agreement.
9. Termination.
(a) Wachovia Capital Markets, LLC may terminate this Agreement with
respect to the Notes by notice to Finance at any time on or prior to the Closing
Date in the event that Finance or the Company shall have failed, refused or been
unable to perform in any material respect all obligations and satisfy in any
material respect all conditions on its part to be performed or satisfied
hereunder at or prior thereto or if, at or prior to the Closing Date (i) trading
in securities generally on the New York Stock Exchange, the NASDAQ National
Market or in the over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market, shall have been
suspended or minimum or maximum prices shall have been established on any such
exchange or market; (ii) there has been a material disruption in commercial
banking or securities settlement, payment or clearance
-24-
services in the United States; (iii) a banking moratorium shall have been
declared by New York, North Carolina or United States authorities or (iv) there
shall have been (A) an outbreak or escalation of hostilities between the United
States and any foreign power, (B) an outbreak or escalation of any other
insurrection or armed conflict involving the United States, (C) the occurrence
of any other calamity or crisis involving the United States or (D) any change in
general economic, political or financial conditions which has an effect on the
U.S. financial markets that, in the case of any event described in this clause
(iv), in the sole judgment of the Representative, makes it impracticable or
inadvisable to proceed with the offer, sale and delivery of the Notes as
disclosed in the Preliminary Memorandum or the Final Memorandum, exclusive of
any amendment or supplement thereto.
(b) Termination of this Agreement pursuant to this Section 9 shall be
without liability of any party to any other party except as provided in Sections
5 and 7 hereof.
10. Defaulting Initial Purchasers. If, on the Closing Date, any
Initial Purchaser defaults in the performance of its obligations under this
Agreement, the non-defaulting Initial Purchasers shall be obligated to purchase
the Notes that such defaulting Initial Purchaser or Initial Purchasers agreed
but failed to purchase on the Closing Date (the "Remaining Notes") in the
respective proportions that the principal amount of the Notes set opposite the
name of each non-defaulting Initial Purchaser in Schedule I hereto bears to the
total number of the Notes set opposite the names of all the non-defaulting
Initial Purchasers in Schedule I hereto; provided, however, that the
non-defaulting Initial Purchasers shall not be obligated to purchase any of the
Notes on the Closing Date if the total amount of Notes which the defaulting
Initial Purchaser or Initial Purchasers agreed but failed to purchase on such
date exceeds 10% of the total amount of Notes to be purchased on the Closing
Date, and no non-defaulting Initial Purchaser shall be obligated to purchase
more than 110% of the amount of Notes that it agreed to purchase on the Closing
Date pursuant to this Agreement. If the foregoing maximums are exceeded, the
non-defaulting Initial Purchasers, or those other purchasers satisfactory to the
Initial Purchasers who so agree, shall have the right, but not the obligation,
to purchase, in such proportion as may be agreed upon among them, all the
Remaining Notes. If the non-defaulting Initial Purchasers or other Initial
Purchasers satisfactory to the Initial Purchasers do not elect to purchase the
Remaining Notes, this Agreement shall terminate without liability on the part of
any non-defaulting Initial Purchaser or Finance, except that Finance will
continue to be liable for the payment of expenses to the extent set forth
herein.
Nothing contained in this Agreement shall relieve a defaulting Initial
Purchaser of any liability it may have to Finance for damages caused by its
default. If other purchasers are obligated or agree to purchase the Notes of a
defaulting or withdrawing Initial Purchaser, Finance or the Representative may
postpone the Closing Date for up to five full business days in order to effect
any changes in the Note Documents or in any other document or arrangement that,
in the opinion of counsel for Finance or Counsel for the Initial Purchasers, may
be necessary.
11. Information Supplied by Initial Purchasers. The statements set
forth in the second sentence of the third paragraph and the third sentence of
the fifth paragraph under the heading "Plan of Distribution" in the Preliminary
Memorandum and the Final Memorandum, to the extent such statements relate to the
Initial Purchasers, constitute the only information furnished by the Initial
Purchasers to Finance or the Company for the purposes of Sections 1(a)
-25-
and 7 hereof.
12. Notices. All communications hereunder shall be in writing and, if
sent to any of the Initial Purchasers, shall be delivered or sent by mail, telex
or facsimile transmission and confirmed in writing to Wachovia Capital Markets,
LLC, One Wachovia Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., if sent
to the Issuer, shall be delivered or sent by mail, telex or facsimile
transmission and confirmed in writing to the Issuer, at The Restaurant Company,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Chief Financial
Officer, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Esq.
13. Successors. This Agreement shall inure to the benefit of and shall
be binding upon the several Initial Purchasers, Finance, the Company and the
Guarantors and their respective successors and legal representatives, and
nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim
under or in respect of this Agreement, or any provisions herein contained, this
Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of the several Initial Purchasers,
Finance, the Company and the Guarantors and their respective successors and
legal representatives, and for the benefit of no other person, except that (i)
the indemnities of Finance and the Company contained in Section 7 of this
Agreement shall also be for the benefit of any person or persons who control any
Initial Purchasers within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act and (ii) the indemnities of the Initial
Purchasers contained in Section 7 of this Agreement shall also be for the
benefit of the affiliates, directors and officers of Finance, the Company and
the Guarantors, and any person or persons who control Finance, the Company or
the Guarantors within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act. No purchaser of Notes from any Initial Purchaser shall
be deemed a successor to such Initial Purchaser because of such purchase.
14. Applicable Law. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT
AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY PROVISIONS
THEREOF RELATING TO CONFLICTS OF LAW.
15. Consent to Jurisdiction and Service of Process.
(a) All judicial proceedings arising out of or relating to this
Agreement may be brought in any state or federal court of competent jurisdiction
in the State of New York, which jurisdiction is non-exclusive.
-26-
(b) Each party agrees that any service of process or other legal
summons in connection with any Proceeding may be served on it by mailing a copy
thereof by registered mail, or a form of mail substantially equivalent thereto,
postage prepaid, addressed to the served party at its address as provided for in
Section 12 hereof. Nothing in this Section shall affect the right of the parties
to serve process in any other manner permitted by law.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[The remainder of this page is intentionally left blank.]
-27-
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute an agreement binding Finance and the
Initial Purchasers.
Very truly yours,
TRC FINANCE, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Accepted as of the date hereof.
WACHOVIA CAPITAL MARKETS, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
BNP PARIBAS SECURITIES CORP.
By: /s/ ▇▇▇▇ [illegible]
------------------------------------
Name: ▇▇▇▇ [illegible]
Title: Managing Director
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: M.D.
▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
-28-
EXHIBIT A
FORM OF OPINION OF ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
1. Each of TRC Finance, TRC and the Guarantors is validly existing and
in good standing under the laws of the State of Delaware and has the requisite
corporate or limited liability company power and authority to own its properties
and to conduct its business as described in the Final Memorandum. Relying solely
on good standing certificates issued by the secretaries of state, each of TRC
Finance, TRC and the Guarantors is duly qualified to do business as a foreign
corporation or limited liability company, as the case may be, in good standing
in the jurisdictions set forth opposite their respective names on Schedule A
hereto, in each case as of the dates set forth on such Schedule.
2. All of the outstanding equity interests of TRC Finance, TRC and the
Guarantors reflected in the stock or membership interest transfer ledgers of TRC
Finance, TRC and the Guarantors, with respect to TRC Finance have been validly
issued and are fully paid and nonassessable, to our knowledge, were not issued
in violation of any contractual, preemptive or similar rights.
3. Each of TRC Finance, TRC and the Guarantors has all requisite
corporate or limited liability company power and authority to execute, deliver
and perform its obligations under the Indenture.
4. The Indenture complies as to form in all material respects with the
requirements of the Trust Indenture Act.
5. The Indenture has been duly and validly authorized, executed and
delivered by TRC Finance, TRC and the Guarantors and constitutes the valid and
legally binding agreement of each of the Issuer and the Guarantors, enforceable
against each of TRC Finance, TRC and the Guarantors in accordance with its
terms.
6. The Notes have been duly and validly authorized, executed and
delivered by the Issuer and, when executed and authenticated in accordance with
the provisions of the Indenture and paid for by the Initial Purchasers in
accordance with the terms of the Purchase Agreement, will constitute the 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.
7. The Exchange Notes have been duly and validly authorized by the
Issuer, and, when duly executed and delivered by the Issuer in accordance with
the terms of the Registration Rights Agreement and the Indenture, will
constitute the 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.
8. The Guarantees have been duly and validly authorized, executed and
delivered by each of the Guarantors and, when the Notes are authenticated by the
Trustee, in accordance with the provisions of the Indenture, will constitute
valid and legally binding obligations of the Guarantors, entitled to the
benefits of the Indenture and enforceable against
Ex. A-1
the Guarantors in accordance with their terms. The guarantees of the Exchange
Notes have been duly and validly authorized by each of the Guarantors, and when
duly executed and delivered by the Guarantors in accordance with the terms of
the Indenture, and when the Exchange Notes are authenticated by the Trustee,
will constitute the valid and legally binding obligations of the Guarantors,
entitled to the benefits of the Indenture, and enforceable against the
Guarantors in accordance with their terms.
9. Each of TRC Finance, TRC and the Guarantors has all requisite
corporate or limited liability company 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, executed and
delivered by each of TRC Finance, TRC and the Guarantors and constitutes the
valid and legally binding agreement of each of the TRC Finance, TRC and the
Guarantors, enforceable against TRC Finance, TRC and the Guarantors in
accordance with its terms.
10. TRC Finance has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Purchase Agreement and to
consummate the transactions contemplated thereby. The Purchase Agreement has
been duly executed and delivered by each of TRC Finance. Each of TRC and the
Guarantors has all requisite corporate or limited liability company power and
authority to execute, deliver and perform its obligations under the Joinder
Agreement. The Joinder Agreement has been duly executed and delivered by TRC and
the Guarantors. The Purchase Agreement with respect to TRC Finance, the Joinder
Agreement with respect to TRC and the Guarantors, and the transactions
contemplated thereby have been duly and validly authorized by TRC Finance, TRC
and the Guarantors
11. The statements under the captions "Description of Certain
Indebtedness", "Description of the Notes", and "Exchange Offer; Registration
Rights" in the Final Memorandum, insofar as such statements constitute a summary
of the legal matters, documents or proceedings referred to therein, fairly
present in all material respects such legal matters, documents and proceedings,
and the statements made in the Final Memorandum under the heading "Certain
United States Income and Estate Tax Consequences," insofar as such statements
summarize certain federal income tax laws of the United States, constitute a
fair summary of the principal U.S. federal income tax consequences of an
investment in the Notes.
12. To our knowledge, except as described in the Final Memorandum, no
legal or governmental proceedings are pending or threatened that seek to
restrain, enjoin, prevent the consummation of or otherwise challenge the
issuance or sale of the Notes under the Purchase Agreement or the consummation
of the other transactions described in the Final Memorandum under the caption
"Use of Proceeds."
13. The execution, delivery and performance by TRC Finance of the
Purchase Agreement, each of TRC and the Guarantors of the Joinder Agreement and
each of TRC Finance, TRC and the Guarantors of the Indenture, the Registration
Rights Agreement, and the consummation of the transactions contemplated thereby
(including, without limitation, the issuance and sale of the Notes to the
Initial Purchasers), will not conflict with or constitute or result in a breach
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 (i) after giving effect
to the application
Ex. A-2
of the proceeds from the issuance and sale of the Notes as described in the
Final Memorandum, the terms or provisions of any Contract Listed on Schedule B
annexed hereto, except for any such conflict, breach, violation, default or
event that would not individually or in the aggregate have a Material Adverse
Effect, (ii) the certificate of incorporation or bylaws, certificate of
formation or operating agreement, as applicable, of TRC Finance, TRC or any
Guarantor, or (iii) 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 3 of the Purchase Agreement, any statute,
judgment, decree, order, rule or regulation known to and believed by us to be
normally applicable to transactions of the type contemplated by the Purchase
Agreement, the Indenture, the Registration Rights Agreement and the Joinder
Agreement, except for any such conflict, breach, default or violation that would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
14. No consent, approval, authorization or order of any governmental
authority is required for the issuance and sale by TRC Finance and TRC of the
Notes to the Initial Purchasers or the consummation, as applicable, by TRC
Finance, TRC and the Guarantors of the other transactions contemplated by the
Purchase Agreement, the Indenture, the Registration Rights Agreement and the
Joinder Agreement, except such as may be required under Blue Sky or state
securities laws, as to which we express no opinion, and those which have
previously been obtained.
15. After giving effect to the sale of the Notes and the application
of the proceeds from such sale (as described in the Final Memorandum under the
caption "Use of Proceeds") none of TRC Finance, TRC or the Guarantors is an
"investment company" as such term is defined in the Investment Company Act of
1940, as amended.
16. No registration under the Securities Act of the Notes is required
in connection with the sale of the Notes to the Initial Purchasers as
contemplated by the Purchase Agreement and the Final Memorandum or in connection
with the initial resale of the Notes by the Initial Purchasers in accordance
with Section 3 of the Purchase Agreement, and prior to the commencement of the
Exchange Offer or the effectiveness of the Shelf Registration Statement (as
defined in the Registration Rights Agreement), the Indenture is not required to
be qualified under the Trust Indenture Act, in each case assuming (i) (A) that
the purchasers who buy such Notes in the initial resale thereof are qualified
institutional buyers as defined in Rule 144A promulgated under the Act or (B)
that the offer or sale of the Notes is made in an offshore transaction as
defined in Regulation S and (ii) the accuracy of the Initial Purchasers'
representations in Section 3 of the Purchase Agreement and those of TRC Finance,
after giving effect to the Joinder Agreement, TRC and the Guarantors, contained
in the Purchase Agreement regarding the absence of a general solicitation in
connection with the sale of such Notes to the Initial Purchasers and the initial
resale thereof.
Ex. A-3
SCHEDULE I
INITIAL PURCHASERS
Aggregate Principal
Amount of Notes to be
Initial Purchaser Purchased from the Company
----------------- --------------------------
Wachovia Capital Markets, LLC $133,000,000
BNP Paribas Securities Corp. $ 38,000,000
▇▇▇▇▇▇▇▇▇ & Company, Inc. $ 9,500,000
▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. $ 9,500,000
Total $190,000,000
S-I-1
SCHEDULE II
GUARANTORS
The Restaurant Company of Minnesota
TRC Realty LLC
▇▇▇▇▇▇▇ Finance Corporation
S-II-1
Exhibit A
JOINDER AGREEMENT
WHEREAS, TRC Finance, Inc. ("Finance") and the Initial Purchasers
named therein (the "Initial Purchasers") heretofore executed and delivered a
Purchase Agreement, dated September 16, 2005 (the "Purchase Agreement"),
providing for the issuance and sale of the Securities (as defined therein); and
WHEREAS, as a condition to the consummation of the offering of the
Securities, The Restaurant Company (the "Company") and each Guarantor (as
defined in the Purchase Agreement), that was originally not a party thereto, has
agreed to join in the Purchase Agreement on the Closing Date.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to such terms in the Purchase Agreement.
NOW, THEREFORE, the Company and each Guarantor hereby agrees for the
benefit of the Initial Purchasers, as follows:
1. Joinder. Each of the undersigned hereby acknowledges that it has
received and reviewed a copy of the Purchase Agreement and all other documents
it deems fit to enter into this Joinder Agreement (the "Joinder Agreement"), and
acknowledges and agrees to (i) join and become a party to the Purchase Agreement
as indicated by its signature below; (ii) be bound by all covenants, agreements,
representations, warranties and acknowledgments attributable to an indemnifying
party in the Purchase Agreement as if made by, and with respect to, each
signatory hereto; and (iii) perform all obligations and duties required of an
indemnifying party pursuant to the Purchase Agreement.
2. Representations and Warranties and Agreements of the Company and
the Guarantors. Each of the undersigned hereby represents and warrants to and
agrees with the Initial Purchasers that it has all the requisite corporate power
and authority to execute, deliver and perform its obligations under this Joinder
Agreement and the consummation of the transaction contemplated hereby has been
duly and validly taken and that when this Joinder Agreement is executed and
delivered, it will constitute a valid and legally binding agreement enforceable
against each of the undersigned in accordance with its terms.
3. Counterparts. This Joinder Agreement may be signed in one or more
counterparts (which may be delivered in original form or facsimile or "pdf" file
thereof), each of which shall constitute an original when so executed and all of
which together shall constitute one and the same agreement.
4. Amendments. No amendment or waiver of any provision of this Joinder
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
thereto.
5. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
6. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS JOINDER
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN.
-2-
IN WITNESS WHEREOF, the undersigned has executed this agreement this
21st day of September 2005.
THE RESTAURANT COMPANY
By:
------------------------------------
Name:
Title:
THE RESTAURANT COMPANY OF MINNESOTA
By:
------------------------------------
Name:
Title:
TRC REALTY, LLC
By:
------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ FINANCE CORPORATION
By:
------------------------------------
Name:
Title:
