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EXHIBIT 10.8
NOTE PURCHASE AGREEMENT
($6,000,000)
THIS NOTE PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of the 29th day of January, 1996 by and between KCC Delaware Company, a
Delaware corporation, and GIANT GROUP, LTD., a Delaware corporation
(collectively, "Seller"), and Rally's Hamburgers, Inc., a Delaware corporation
("Buyer") with reference to the following facts and circumstances:
A. Seller is the owner of certain of the Buyer's outstanding
9-7/8% Senior Notes due June 15, 2000 (the "Notes"). Pursuant to this
Agreement, Buyer desires to purchase from Seller, and Seller desires to sell to
Buyer, $6,000,000 principal amount of such Notes (the "Purchased Notes") upon
and subject to the terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the foregoing, and other valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Purchase and Sale of Purchased Notes. Upon the terms and
conditions set forth herein, Seller hereby agrees to sell to Buyer, and Buyer
hereby agrees to purchase from Seller, the Purchased Notes. Buyer shall cause
the Purchased Notes to be delivered to the Trustee for cancellation.
2. Purchase Price. The purchase price (the "Purchase Price") for
the Purchased Notes shall be $678.75 per $1,000 principal amount of Purchased
Note, plus accrued and unpaid interest thereon through the Closing Date) (as
defined herein) (an aggregate of $4,144,916.67). The Purchase Price shall be
paid to Seller by Buyer on the Closing Date by delivery to Seller of Buyer's
Short-Term Note in the amount of the Purchase Price, in the form of Exhibit A
hereto (the "Short-Term Note"). At the Closing (as defined herein), Seller
shall deliver (or cause its nominee to deliver), against delivery of the
Short-Term Note, the Purchased Notes. Delivery of the Purchased Notes may be
effected by physical delivery of the Purchased Notes, duly endorsed for
transfer or accompanied by duly executed separate assignment, or by book entry
to the Buyer's account.
3. Closing. The consummation of the purchase and sale of the
Purchased Notes (the "Closing") shall take places at the offices of the Seller,
or at such other location as the parties may mutually agree, at 10:00 a.m. as
of January 29, 1996, or on such other date and time as may be fixed by mutual
agreement of the parties (the "Closing Date").
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4. Representations and Warranties of Seller. Seller hereby
represents and warrants to Buyer as follows:
a. TITLE TO PURCHASED NOTES. Seller owns the Purchased
Notes free and clear of any liens, pledges, encumbrances, charges, agreements
or claims.
b. CORPORATE POWER AND AUTHORITY. Seller has the
corporate power and authority to execute and deliver this Agreement and to
perform its obligations contemplated hereby.
c. ENFORCEABLE AGREEMENT. This Agreement has been duly
authorized, executed and delivered and constitutes the legal, valid and binding
obligation of Seller, enforceable in accordance with its terms, except to the
extent that enforceability may be limited by applicable bankruptcy, insolvency
or other laws affecting the enforcement of creditors' rights generally or by
general principles of equity.
5. Representations and Warranties of Buyer. Buyer hereby
represents and warrants to Seller as follows:
a. CORPORATE POWER AND AUTHORITY. Buyer has the
corporate power and authority to execute and deliver this Agreement and the
Short-Term Note and to perform its obligations contemplated hereby.
b. ENFORCEABLE AGREEMENT. Each of this Agreement and
the Short-Term Note has been duly authorized, executed and delivered and
constitutes the legal, valid and binding obligation of Buyer, enforceable in
accordance with its terms, except to the extent that enforceability may be
limited by applicable bankruptcy, insolvency or other laws affecting the
enforcement of creditors' rights generally or by general principles of equity.
c. PURCHASE OF PURCHASED NOTES. Buyer agrees that it
will not sell, dispose or otherwise transfer any Purchased Notes in violation
of the Securities Act of 1933, as amended, or applicable state securities laws.
d. COMPLIANCE. In connection with the
transactions provided for in this Agreement, Buyer has complied with its
articles of incorporation, by-laws, and the Indenture dated as of March 1, 1993
relating to the Notes, and all other agreements of Buyer, to the extent
applicable.
6. Closing Costs. Each party hereto shall pay its own attorneys'
and other fees incurred in connection with the transactions contemplated
hereby.
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7. Miscellaneous.
a. NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be either delivered in person
or sent by commercial courier service or United States mail, registered or
certified mail, postage prepaid, return receipt requested, and addressed as
follows:
Seller: KCC Delaware Company
000 Xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxx
and
GIANT GROUP, LTD.
000 Xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxx
Buyer: Rally's Hamburgers, Inc.
00000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxx
or such other address as either party may from time to time specify in writing
to the other in the manner aforesaid. If personally delivered, such notices or
other communications shall be deemed delivered upon delivery. If sent by
commercial courier service or United States mail, registered or certified mail,
postage prepaid, return receipt requested, such notices or other communications
shall be deemed delivered upon delivery or refusal to accept delivery as
indicated on the return receipt.
b. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
c. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of California, without regard to
conflict of laws principles.
d. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which
together shall comprise one and the same instrument.
e. CAPTIONS AND HEADINGS. The captions and headings of Sections
contained herein are for convenience of reference only.
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f. FURTHER ASSURANCES. The parties hereto agree to take such further
actions and execute such further instruments as may be reasonably necessary in
connection with the consummation of the transactions contemplated hereby.
g. AUTHORITY. The parties signing below represent they have the
requisite power and authority to bind the entity on whose behalf they are
signing.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
RALLY'S HAMBURGERS, INC.,
a Delaware corporation
By: XXXXXXX X. XXXX
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KCC DELAWARE COMPANY,
a Delaware corporation
By: XXXXX X. XXXX
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GIANT GROUP, LTD.,
a Delaware corporation
By: XXXXX X. XXXX
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