EXHIBIT 99.2
NOTE PURCHASE AND PUT AGREEMENT (this "Agreement"), dated as of June
27, 2003, among XXXXXXXXX & COMPANY, INC. (the "Initial Purchaser") and the
purchasers set forth on Annex A hereto (each, a "Purchaser" and collectively,
the "Purchasers").
RECITALS
A. New World Restaurant Group, Inc. (the "Company") has entered into a
Purchase Agreement (the "Purchase Agreement"), dated as of the date hereof, with
the Initial Purchaser, pursuant to which the Company has agreed to issue and
sell $160,000,000 aggregate principal amount of 13% Senior Secured Notes due
2008 (the "Notes") of the Company.
B. Immediately following the purchase of the Notes by the Initial
Purchaser pursuant to the Purchase Agreement, the Purchasers have agreed,
severally, and not jointly and severally, to purchase $70,000,000 aggregate
principal amount of the Notes from the Initial Purchaser at a price equal to 97%
of the principal amount of the Notes, on the terms and subject to the conditions
of this Agreement.
C. In addition, the Purchasers have granted to the Initial Purchaser an
option to put to the Purchasers, severally, and not jointly and severally, up to
an additional $30,000,000 aggregate principal amount of the Notes at a price
equal to 95% of the principal amount of the Notes, on the terms and subject to
the conditions of this Agreement
D. The parties hereto now wish to enter into this Agreement to provide
for the Purchasers' commitment to purchase up to $100,000,000 aggregate
principal amount of the Notes, on the terms and conditions set forth herein.
AGREEMENT
In consideration of the premises and the mutual covenants and the
agreements herein set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms
have the meanings stated:
"Affiliate" of a Person means any other Person that directly
or indirectly controls, is controlled by or is under common control
with, the Person or any of its Subsidiaries.
"Dollars" and "$"refer to United States dollars and other
lawful currency of the United States of America from time to time in
effect.
"Person" means any individual, corporation, partnership,
limited liability company, association, joint venture, trust or any
other entity or organization.
"Purchaser Percentage" means, for each Purchaser, the
percentage set forth opposite such Purchaser's name under the heading
"Purchaser Percentage" on Annex A.
"Securities Act" means the Securities Act of 1933, as amended,
and the related regulations and published interpretations.
Section 2. Agreement to Purchase Notes. Upon the terms and subject to
the conditions set forth in this Agreement, each Purchaser, severally, and not
jointly and severally, hereby agrees to purchase from the initial Purchaser, and
the Initial Purchaser hereby agrees to sell, transfer, assign, convey and
deliver to each Purchaser, on the Closing Date (as defined in the Purchase
Agreement), Notes having an aggregate original principal amount equal to the
principal amount set forth opposite such Purchaser's name on Annex A hereto
(such Notes being the "Purchased Notes"), for an amount in cash equal to the
product of (a) 0.97, multiplied by (b) the aggregate principal amount of
Purchased Notes to be purchased by such Purchaser, in each case, by wire
transfer of immediately available funds in accordance with the wire transfer
instructions attached hereto on Annex B; provided, however, that in the event
that the Closing Date shall not occur on or prior to the date which is three
months after the date of this Agreement (the "Termination Date"), none of the
Purchasers shall be obligated to purchase any Notes hereunder after the
Termination Date.
Section 3. Put Option.
(a) Grant of Option. Upon the terms and subject to the conditions set
forth in this Agreement, each Purchaser, severally, and not jointly and
severally, hereby grants to the Initial Purchaser the right and option (the "Put
Option") to sell to such Purchaser, on the Closing Date, Notes (the "Additional
Notes") in an aggregate principal amount not to exceed the product of (i) the
aggregate principal amount of Notes that the Initial Purchaser is unable to sell
to third parties up to a maximum of $30,000,000, multiplied by (ii) Purchaser
Percentage for such Purchaser, for an amount in cash equal to the product of (i)
0.95, multiplied by (ii) the aggregate principal amount of Additional Notes to
be purchased by such Purchaser, in each case, by wire transfer of immediately
available funds in accordance with the wire transfer instructions attached
hereto on Annex B.
(b) Exercise of Put Option. The Put Option shall be exercisable during
the period from the date of this Agreement through the Termination Date. In
order to exercise the Put Option, the Initial Purchaser shall deliver to each
Purchaser a written notice on or prior to the Closing Date setting forth the
aggregate principal amount of Additional Notes to be purchased by each
Purchaser.
Section 4. Time and Place of the Closing. The closing of the sale,
transfer, assignment, conveyance and delivery of the Purchased Notes and the
Additional Notes (the "Closing"),will take place at the offices of Mayer, Brown,
Xxxx & Maw, on the Closing Date immediately following the consummation of the
transactions described in the Purchase Agreement.
Section 5. Conditions Precedent to the Obligations of the Purchasers.
The obligations of the Purchasers under this Agreement are expressly subject to
the fulfillment of each of the following conditions, unless expressly waived by
the Purchasers in writing, at or before the Closing.
(a) Representations and Warranties; Covenants. The
representations and
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warranties of the Initial Purchaser set forth in this Agreement shall
be true in all material respects on and as of the Closing Date with the
same force and effect as though made on and as of the Closing Date. The
Initial Purchaser shall have performed and complied in all material
respects with all of its covenants and other obligations contained in
this Agreement required to be performed or complied with by the Initial
Purchaser at or before the Closing.
(b) Purchase Agreement. The representations and warranties of
the Company set forth in the Purchase Agreement shall be trite in all
material respects on and as of the Closing Date with the same force and
effect as though made on and as of the Closing Date. The Company shall
have performed and complied in all material respects with all of its
covenants and other obligations contained in the Purchase Agreement
required to be performed or complied with by the Company at or before
the closing under the Purchase Agreement. All of the conditions set
forth in Section 7 of the Purchase Agreement shall have been satisfied
(and not waived).
(c) Purchase of Notes. The Initial Purchaser shall have
purchased Notes having an aggregate principal amount equal to
$l60,000,000 from the Company pursuant to the Purchase Agreement.
(d) Purchased Notes and Additional Notes. The Purchasers shall
have received the purchased Notes and the Additional Notes.
(e) Documents. The final Indenture and the final Intercreditor
Agreement (as defined in the Indenture) shall conform in all material
respects to the draft Indenture and the draft Intercreditor Agreement
delivered to the Purchasers on the date of this Agreement.
(f) Material Adverse Effect. Since the date of this Agreement
through the date of the Closing hereunder, no event or circumstance
shall have occurred, which has had, or could reasonably be expected to
have, a Material Adverse Effect (as defined in the Purchase Agreement).
Section 6. Conditions Precedent to the Obligations of the Initial
Purchaser. The obligations of the Initial Purchaser under this Agreement are
expressly subject to the fulfillment of each of the following conditions, unless
waived by the Initial Purchaser in writing, at or before the Closing.
(a) Representations and Warranties; Covenants. The
representations and warranties of the Purchasers set forth in this
Agreement shall be true in all material respects on and as of the
Closing Date with the same force and effect as though made on and as of
the Closing Date. The Purchasers shall have performed and complied in
all material respects with all of their covenants and other obligations
contained in this Agreement required to be performed or complied with
by the Purchasers at or before the Closing.
(b) Purchase of Notes. The Company shall have issued to the
Initial Purchaser
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Notes having an aggregate principal amount equal to $160,000,000
pursuant to the Purchase Agreement.
(c) Purchase Price. The Initial Purchaser shall have received
the aggregate purchase price for the Purchased Notes and the Additional
Notes by wire transfer of immediately available funds in accordance
with the provisions of Sections 2 and 3 hereof.
Section 7. Representations and Warranties of the Initial Purchaser. The
Initial Purchaser hereby represents and warrants to the Purchasers as of the
date hereof and as of the Closing Date as follows:
(a) Existence and Power. The Initial Purchaser (i) is a
corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, and (ii) has all
necessary corporate power and authority required to execute and deliver
this Agreement and to consummate the transactions described in this
Agreement.
(b) Authorization Binding Effect. The execution and delivery
by the Initial Purchaser of this Agreement, the performance by the
Initial Purchaser of its obligations under this Agreement and the
consummation of the transactions described in this Agreement by the
Initial Purchaser has been duly authorized by all necessary corporate
action on the part of the Initial Purchaser. This Agreement is the
legal, valid and binding obligation of the Initial Purchaser
enforceable against the Initial Purchaser in accordance with its terms,
except that such enforcement (i) may be limited by bankruptcy,
insolvency, moratorium or similar laws affecting creditors' rights
generally and (ii) is subject to the availability of equitable
remedies, as determined in the discretion of the court before which
such a proceeding may be brought.
(c) Contravention. Neither the execution, delivery and
performance of this Agreement by the Initial Purchaser nor the
consummation of the transactions described in this Agreement by the
Initial Purchaser will (with or without notice or lapse of time or
both) (i) violate or breach any provision of the Initial Purchaser's
organizational or governing documents, (ii) violate or breach any
statute, law, regulation, rule or order by which the Initial Purchaser
or any of its material assets or properties maybe bound or affected, or
(iii) breach or result in a default under any material contract or
agreement to which the Initial Purchaser is a party or by which the
Initial Purchaser or any of its material assets or properties may be
bound or affected.
(d) Consents. No approval, consent, authorization or order of,
notice to or registration or filing with, or any other action by, any
governmental authority or other person or entity are required in
connection with (i) the due execution and delivery by the Initial
Purchaser of this Agreement and the performance of the Initial
Purchaser's obligations hereunder, and (ii) the consummation of the
transactions described in this Agreement.
(e) Litigation. There is no action, arbitration, lawsuit or
proceeding against the Initial Purchaser that involves any of the
transactions described in this Agreement and the Purchase Agreement.
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(f) The Purchased Notes and Additional Notes. Upon delivery to
the Purchasers at the Closing of the Purchased Notes and the Additional
Notes, and upon the Initial Purchaser's receipt of the purchase price
for the Purchased Notes and the Additional Notes as provided in
Sections 2 and 3 hereof, the Purchasers will become the sole record and
legal owners of the Purchased Notes and the Additional Notes and good
and marketable title to such Purchased Notes and Additional Notes will
pass to the Purchasers, free and clear of any liens, claims,
encumbrances, security interests, charges, options and transfer
restrictions of any kind created by or through the Initial Purchaser.
(g) Securities Laws. The Initial Purchaser has not offered to
sell any portion of the Purchased Notes or the Additional Notes or any
interest therein in a manner which violates any applicable securities
law or would require the issuance and sale hereunder to be registered
under the Securities Act.
Section 8. Representations and Warranties of the Purchasers. Each
Purchaser, severally, and not jointly and severally, with respect to itself
only, hereby represents and warrants to the Initial Purchaser as of the date of
this Agreement and as of the Closing Date as follows:
(a) Existence and Power. Such Purchaser (i) is a limited
partnership or limited liability company, as the case may be, duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and (ii) has all necessary partnership
or limited liability company power and authority, as the case may be,
to execute and deliver this Agreement and to consummate the
transactions described in this Agreement.
(b) Authorization Binding Effect. The execution and delivery
by such Purchaser of this Agreement, the performance by such Purchaser
of its obligations under this Agreement and the consummation of the
transactions described in this Agreement by such Purchaser has been
duly authorized by all necessary partnership or limited liability
company action, as the case may be, on the part of such Purchaser. This
Agreement is the legal, valid and binding obligation of such Purchaser
enforceable against such Purchaser in accordance with its terms, except
that such enforcement (i) may be limited by bankruptcy, insolvency,
moratorium or similar laws affecting creditors' rights generally and
(ii) is subject to the availability of equitable remedies, as
determined in the discretion of the court before which such a
proceeding may be brought.
(c) Contravention. Neither the execution, delivery and
performance of this Agreement by such Purchaser nor the consummation of
the transactions described in this Agreement by such Purchaser will
(with or without notice or lapse of time or both) (i) violate or breach
any provision of such Purchaser's organizational or governing
documents, (ii) violate or breach any statute, law, regulation, rule or
order by which such Purchaser or any of its material assets or
properties may be bound or affected, or (iii) breach or result in a
default under, any material contract or agreement to which such
Purchaser is a party or by which such Purchaser or any of its material
assets or properties may be bound or affected.
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(d) Consents. No approval, consent, authorization or order of,
notice to or registration or filing with, or any other action by, any
governmental authority or other person or entity are required in
connection with (i) the due execution and delivery by such Purchaser of
this Agreement and the performance of such Purchaser's obligations
hereunder, and (ii) the consummation of the transactions described in
this Agreement.
(e) Litigation. There is no action, lawsuit or proceeding
against such Purchaser that involves any of the transactions described
in this Agreement.
Section 9. Miscellaneous.
(a) Notices. All notices, requests, demands and other communications to
any party or given under this Agreement will be in writing and delivered
personally, by overnight delivery or courier, by registered mail or by
telecopier (with confirmation received) to the parties at the address or
telecopy number specified for such parties on the signature pages hereto (or at
such other address or telecopy number as may be specified by a party in writing
given at least five business days prior thereto). All notices, requests, demands
and other communications will be deemed delivered when actually received.
(b) Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, and by different parties hereto in separate counterparts,
each of which when executed will be deemed an original, but all of which taken
together will constitute one and the same instrument.
(c) Amendment of Agreement. This Agreement may not be amended, modified
or waived except by an instrument in writing signed on behalf of each of the
parties hereto.
(d) Successors and Assigns; Assignability. This Agreement will be
binding upon and inures to the benefit of and is enforceable by the respective
successors and permitted assigns of the parties hereto. This Agreement may not
be assigned by any party hereto without the prior written consent of all other
parties hereto. Any assignment or attempted assignment in contravention of this
Section will be void ab initio and will not relieve the assigning party of any
obligation under this Agreement.
(e) Governing Law. This Agreement will be governed by, and construed in
accordance with, the laws of the state of New York applicable to contracts
executed in and to be performed entirely within that state, without reference to
conflicts of laws provisions.
(f) Integration. This Agreement contains and constitutes the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all prior negotiations, agreements and understandings, whether
written or oral, of the parties hereto.
(g) Severability. if any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement will nevertheless
remain in full force and effect.
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(h) No Third-Party Rights. This Agreement is not intended, and will not
be construed, to create any rights in any parties other than the Initial
Purchaser and the Purchasers and no person or entity may assert any rights as
third-party beneficiary hereunder.
(i) Waiver of Jury Trial. EACH OF THE INITIAL PURCHASER AND THE
PURCHASERS HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY LAWSUIT, ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHT UNDER THIS AGREEMENT OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR TO BE DELIVERED IN CONNECTION
WITH THIS AGREEMENT AND AGREES THAT ANY LAWSUIT, ACTION OR PROCEEDING WILL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
(j) No Waiver; Remedies. No failure or delay by any party in exercising
any right, power or privilege under this Agreement will operate as a waiver of
the right, power or privilege. A single or partial exercise of any right, power
or privilege will not preclude any other or further exercise of the right, power
or privilege or the exercise of any other right, power or privilege. The rights
and remedies provided in this Agreement will be cumulative and not exclusive of
any rights or remedies provided by law.
(k) Several Obligations. Notwithstanding anything contained in this
Agreement to the contrary, the parties agree that all obligations and
liabilities of any Purchaser under this Agreement are enforceable solely against
such Purchaser and the obligations and liabilities of the Purchasers under this
Agreement are several and not joint and several and each Purchaser is only
liable for such Purchaser's Percentage of any liability or obligation under this
Agreement.
(l) Further Assurances. Promptly upon the reasonable request by any
Purchaser, the Initial Purchaser shall (i) correct any defect or error that may
be discovered in this Agreement or in the execution or delivery of this
Agreement, (ii) execute, acknowledge, deliver, record, file and register, any
and all such further acts, conveyances, assignments, notices of assignment,
transfers, certificates, assurances, endorsements and other instruments, and
(iii) take all such action, in each case, as such requesting party may require
from time to time.
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In witness whereof, the parties have executed and delivered this
Agreement as of the date first written above.
INITIAL PURCHASER:
JEFFERIES & COMPANY, INC.
Address for Notices:
00 XXX Xxxxxxx, 0xx Xxxxx
Xxxxx Xxxxx, Xxx Xxxxxx 00000
Attention: Xxxx X. Xxxx By:
Facsimile No.: 000-000-0000 --------------------------------
Name:
Title:
with a copy to:
Mayer, Brown, Xxxx & Maw
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile No.:
-------------------
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PURCHASERS:
FARALLON CAPITAL PARTNERS, L.P.
Address for Notices: FARALLON CAPITAL INSTITUTIONAL
c/o Farallon Capital Management, L.L.C. PARTNERS, L.P.
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000 XXXXXXXX XXXXXXX INSTITUTIONAL
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 PARTNERS II, L.P.
Attention: Xxxxx Xxxxxxx FARALLON CAPITAL INSTITUTIONAL
Facsimile No.: 000-000-0000 PARTNERS III, L.P.
TINICUM PARTNERS, L.P.
with a copy to: By: Farallon Partners, L.L.C.,
Xxxxxxxx Xxxxxx Xxxxx & Xxxx LLP their General Partner
One World Financial Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Facsimile No.: 000-000-0000 By:
-----------------------------------
Name:
Title:
FARALLON CAPITAL OFFSHORE
Address for Notices: INVESTORS, INC.
-------------------
x/x Xxxxxxxx Xxxxxxx Xxxxxxxxxx, X.X.X.
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000 Xx: Farallon Capital Management, L.L.C.,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 its Agent and Attorney-in-Fact
Attention: Xxxxx Xxxxxxx
Facsimile No.: 000-000-0000
with a copy to: By:
Xxxxxxxx Xxxxxx Xxxxx & Xxxx LLP -----------------------------------
One World Financial Center Name:
Title: 00xx Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Facsimile No.: 000-000-0000
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Address for Notices: GREENLIGHT CAPITAL, L.P.
c/o Greenlight Capital, Inc.
000 Xxxxxxxxx Xxx., Xxxxx 0000 By: Greenlight Capital, L.L.C.,
Xxx Xxxx, Xxx Xxxx 00000-0000 its general partner
Attention.: Xxxxx Einhorzi
Facsimile No.: 212-973-1900
By:
----------------------------------
Name:
Title:
Address for Notices: GREENLIGHT CAPITAL
c/o Greenlight Capital, Inc. QUALIFIED, L.P.
000 Xxxxxxxxx. Xxx., Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxxx By: Greenlight Capital, L.L.C.,
Facsimile No.: 212-973-1900 its general partner
By:
----------------------------------
Name:
Title:
Address for Notices: GREENLIGHT CAPITAL
c/o Greenlight Capital, Inc. OFFSHORE, LTD.
000 Xxxxxxxxx Xxx., Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Einhmil By: Greenlight Capital, Inc.,
Facsimile No.: 212-973-1900 its investment advisor
By:
----------------------------------
Name:
Title:
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ANNEX A
to
NOTE PURCHASE AND PUT AGREEMENT
Purchasers
Aggregate Principal
Amount of Purchased Purchaser
Purchaser Notes to be Purchased Percentage
--------- --------------------- ----------
Farallon Capital Partners, L.P. $ 7,480,000 10.686%
Farallon Capital Institutional Partners, L.P. $ 6,680,000 9.543%
Farallon Capital Institutional Partners II, L.P. $ 800,000 1.143%
Farallon Capital Institutional Partners III, L.P. $ 980,000 1.400%
Tinicum Partners, L-P. $ 355,000 0.507%
Farallon Capital Offshore Investors, Inc- $ 18,705,000 26.721%
Greenlight Capital, L.P. $ 4,511,500 6.445%
Greenlight Capital Qualified, L.P. $ 13,608,000 19.440%
Greenlight Capital Offshore. Ltd. $ 16,880,500 24.15%
------------- ------
Totals $ 70,000,000 100.000%
