EXECUTION COPY
ANVIL HOLDINGS, INC.
30,000 Units Consisting of
$30,000,000
13% Senior Exchangeable Preferred Stock due 2009
and
390,000 Shares of Class B Common Stock
PURCHASE AGREEMENT
March 11, 1997
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Anvil Holdings, Inc., a Delaware corporation ("Holdings") agrees
with you as follows:
1. The Units Offering and Related Transactions. Holdings proposes to
offer and sell (the "Units Offering") 30,000 Units (the "Units"), consisting of
$30,000,000 aggregate liquidation preference of 13% Series A Senior Exchangeable
Preferred Stock due 2009 (the "Series A Senior Preferred Stock") of Holdings and
390,000 shares of Class B Common Stock, $0.01 par value per share (the "Class B
Common") of Holdings. The Units will be issued pursuant to the Unit Agreement
dated as of March 14, 1997 (the "Unit Agreement") between Holdings and United
States Trust Company of New York, as Unit Agent and Transfer Agent (the "Unit
Agent"), with each Unit comprising 40 shares of Series A Senior Preferred Stock
and 13 shares of Class B Common. The Series A Senior Preferred Stock will be
issued pursuant to the terms of the certificate of designations therefor (the
"Certificate of Designation"). The Senior Preferred Stock (as defined below)
will be exchangeable at Holdings' option, but subject to certain conditions,
pursuant to the terms thereof into 13% Subordinated Exchange Debentures due 2009
(the "Exchange Debentures") of Holdings. Exchange Debentures, if any, will be
issued pursuant to the provisions of an Indenture to be dated as of March 14,
1997 (the "Exchange Debenture Indenture"), between Holdings and United States
Trust Company of New York, as Trustee.
Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Exchange Debenture Indenture unless
otherwise indicated.
Concurrently with the Units Offering, Anvil Knitwear Inc., a
Delaware corporation ("Anvil"), proposes to offer and sell (the "Offering" and,
together with the Units Offering, the "Offerings") $130,000,000 aggregate
principal amount of its 10-7/8% Senior Notes
due 2007 (the "Series A Senior Notes"). The Series A Senior Notes and the Series
B Senior Notes (as defined in the registration rights agreement relating to the
Series A Senior Notes) will be guaranteed by Holdings, Cottontops, Inc. and the
other Subsidiary Guarantors (as defined in the Senior Indenture). The Senior
Notes are to be issued pursuant to the provisions of an Indenture to be dated as
of March 14, 1997 (the "Senior Indenture"), between Anvil, Holdings, Cottontops,
Inc., the other Subsidiary Guarantors and United States Trust Company of New
York, as Trustee (the "Trustee").
Concurrently with the Offerings, Anvil and Holdings intend to enter
into a $50.0 million amended and restated credit agreement among Anvil,
Holdings, as guarantor, the subsidiary guarantors named therein and NationsBank,
N.A., as agent, to be dated as of March 14, 1997 (the "New Credit Agreement")
and to make an initial borrowing thereunder in the amount of $32.7 million.
Borrowings under the New Credit Agreement will be guaranteed by Holdings. The
proceeds from the Offerings, together with borrowings under the New Credit
Agreement and the Equity Contribution (as defined in the Offering Memorandum),
will be used to: (i) repay all outstanding borrowings under the Old Credit
Agreement (as defined in the Offering Memorandum); (ii) repay the Subordinated
Note (as defined in the Offering Memorandum); (iii) redeem substantially all of
the outstanding shares of the Old Preferred Stock (as defined in the Offering
Memorandum) and pay all accrued dividends thereon; (iv) repurchase all of
Holdings' Common Stock (other than the Retained Shares) (each as defined in the
Offering Memorandum); (v) make payments to Anvil's senior management team
pursuant to Holdings' Phantom Equity Plan (as defined in the Offering
Memorandum); (vi) pay the Management Bonus (as defined in the Offering
Memorandum) and (vii) pay the fees and expenses of the Recapitalization (as
defined in the Offering Memorandum).
The Securities (as defined below) will be offered and sold to the
initial purchasers thereof pursuant to an exemption from the registration
requirements under the Securities Act of 1933, as amended (the "Securities
Act"). Holdings has prepared a preliminary offering memorandum, dated February
25, 1997 (the "Preliminary Offering Memorandum"), and a final offering
memorandum, dated March 11, 1997 (the "Offering Memorandum"), relating to
Holdings and the Securities.
Upon original issuance thereof, and until such time as the same is
no longer required under the applicable requirements of the Securities Act, the
Securities (and all securities issued in exchange therefor or in substitution
thereof) shall bear the following legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF
THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND
THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY
IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
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THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF HOLDINGS THAT (A) SUCH
SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY
(1)(a) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144, OR IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF HOLDINGS SO
REQUESTS), (b) TO HOLDINGS, (c) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (d) OUTSIDE THE
UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, AND (2) IN EACH
CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE."
You have advised Holdings that you will make offers (the "Exempt
Resales") of the Units purchased by you hereunder on the terms set forth in the
Offering Memorandum, as amended or supplemented, solely to persons whom you
reasonably believe to be "qualified institutional buyers," as defined in Rule
144A under the Securities Act ("QIBs") and to a limited number of institutional
"accredited investors" referred to in Rule 501(a)(1), (2), (3) or (7) under the
Act (each, an "Accredited Investor"). The QIBs and the Accredited Investors are
sometimes referred to herein as the "Eligible Purchasers." You will offer the
Units purchased by you to such QIBs and Accredited Investors initially at a
price equal to $1,000 (plus accumulated dividends, if any, from the date of
issuance). Such price may be changed by you at any time without notice.
You have advised Holdings that you will act as agent in connection
with certain sales (the "Agent Sales") of Units to be sold by Holdings on the
terms set forth in the Offering Memorandum, as amended or supplemented, to each
person Holdings reasonably believes to be Eligible Purchasers. The Units sold by
Holdings will to offered to such Eligible Purchasers at a price equal to $1,000
(plus accumulated dividends, if any, from the date of issuance). Any purchaser
of Units sold by us through you as agent will execute an accredited investor
letter substantially in the form of Annex A to the Offering Memorandum.
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Holders (including subsequent transferees) of the Senior Preferred
will have the registration rights set forth in the registration rights agreement
relating to the Senior Preferred Stock (the "Registration Rights Agreement"), to
be dated the Closing Date (as defined herein), in substantially the form of
Exhibit A hereto, for so long as such Senior Preferred Stock constitute
"Transfer Restricted Securities" (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, Holdings will agree
to file with the Securities and Exchange Commission (the "Commission"), under
the circumstances set forth therein, (i) a registration statement under the
Securities Act (the "Exchange Offer Registration Statement") relating to a new
issue of Series B Senior Preferred Stock of Holdings with terms substantially
identical to those of the Series A Senior Preferred Stock (the "Series B Senior
Preferred Stock" and, together with the Series A Senior Preferred Stock, the
"Senior Preferred Stock") to be offered in exchange for the Series A Senior
Preferred Stock (the "Exchange Offer"), and (ii) a shelf registration statement
pursuant to Rule 415 under the Securities Act (the "Shelf Registration
Statement") relating to the resale by certain holders of the Senior Preferred
Stock, and to use their best efforts to cause such Registration Statements to be
declared effective. This Purchase Agreement (this "Agreement"), the Senior
Preferred Stock, the Class B Common, the Registration Rights Agreement, the Unit
Agreement, the Certificate of Designation, the Exchange Debenture Indenture, the
New Credit Agreement, the Securityholders Agreement (as defined in the Offering
Memorandum) and the Recapitalization Agreement, as amended, (as defined in the
Offering Memorandum) are hereinafter sometimes referred to collectively as the
"Operative Documents." The Units, the Senior Preferred Stock, the Class B Common
and the Exchange Debentures are sometimes collectively referred to herein as the
"Securities."
2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, Holdings agrees to issue and sell to Donaldson, Lufkin &
Jenrette Securities Corporation (the "Initial Purchaser"), and you agree to
purchase from Holdings, 26,667 Units consisting of $26,667,000 aggregate
liquidation preference of Series A Senior Preferred Stock and 346,671 shares of
Class B Common. The purchase price for the Units shall be $960 per Unit, plus
accumulated dividends, if any, from the date of issuance to the date of payment
and delivery which purchase price includes payment of at least $0.01 per share
of Series A Senior Preferred Stock and at least $0.01 per share of Class B
Common.
In addition, the Initial Purchaser agrees to act as agent in
connection with the sale by Holdings of an additional 3,333 Units consisting of
$3,333,000 aggregate liquidation preference of Series A Senior Preferred Stock
and 43,329 shares of Class B Common. The purchase price for the Units sold by
you as agent shall be $1,000 per Unit, plus accumulated dividends, if any, from
the date of issuance to the date of payment and delivery which purchase price
includes payment of at least $0.01 per share of Series A Senior Preferred Stock
and at least $0.01 per share of Class B Common. You shall be entitled to receive
a commission of $40 per Unit in respect of up to 3,333 Units issued pursuant to
the Units Offering in addition to the Units purchased by you pursuant to the
preceding paragraph.
3. Delivery and Payment. Delivery of, and payment for, the Units
shall be made at 10:00 a.m., New York City time, on March 14, 1997 (the "Closing
Date") at the
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offices of Simpson Thacher & Bartlett, 425 Lexington Avenue, New York, New York
10017, or such other time or place as you and Holdings shall designate.
One or more of the Units in definitive form, registered in the name
of Cede & Co., as nominee of The Depository Trust Company ("DTC"), or such other
names as the Initial Purchaser may request upon at least two business days'
notice to Holdings prior to the Closing Date, in an amount designated by you
(each, a "Global Unit"), and one or more of the Units in definitive form,
registered in such names and denominations as you may request (each, a
"Certificated Unit") shall be delivered by Holdings to you (or as you direct),
against payment by you of the purchase price by wire transfer of immediately
available funds to the order of Holdings. The Global Unit(s) and the
Certificated Unit(s) in definitive form shall be made available to you for
inspection no later than 9:30 a.m. on the business day immediately preceding the
Closing Date.
4. Agreements of Holdings. Holdings agrees with you as follows:
(a) Before completion of the distribution of the Units by you, to
advise you promptly and, if requested by you, confirm such advice in
writing, (i) of the issuance by any state securities commission of any
stop order suspending the qualification or exemption from qualification of
any of the Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purpose by any state securities
commission or other regulatory authority, and (ii) to advise you promptly,
and if requested by you, confirm such advice in writing, of (A) the
happening of any event that makes any statement of a material fact made in
the Offering Memorandum untrue or that requires the making of any
additions to or changes in the Offering Memorandum in order to make the
statements therein, in the light of the circumstances under which they are
made, not misleading and (B) the issuance of any quarterly or annual
financial statements by Holdings or Anvil (copies of which shall be
delivered to you within one business day after issuance). Holdings shall
use its best efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption of any of the Securities under
any state securities or Blue Sky laws, and if at any time any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption of any of the Securities under
any state securities or Blue Sky laws, Holdings shall use its best efforts
to obtain the withdrawal or lifting of such order at the earliest possible
time.
(b) To furnish you, without charge, as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and any
amendments or supplements thereto, as you may reasonably request. Holdings
consents to the use of the Preliminary Offering Memorandum and the
Offering Memorandum, and any amendments and supplements thereto, by you in
connection with Exempt Resales and Agent Sales; provided, however, that
the Initial Purchaser shall discontinue using such Preliminary Offering
Memorandum or Offering Memorandum if advised by Holdings that the
Preliminary Offering Memorandum or Offering Memorandum are to be amended
or supplemented until such document is so amended or supplemented.
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(c) Not to amend or supplement the Preliminary Offering Memorandum
or the Offering Memorandum prior to the Closing Date unless you shall
previously have been advised thereof and shall not have objected thereto
in writing within five business days after being furnished a copy thereof.
Holdings shall promptly prepare, upon your request, any amendment or
supplement to the Preliminary Offering Memorandum or the Offering
Memorandum that may be necessary or advisable in connection with Exempt
Resales and Agent Sales.
(d) If, after the date hereof and prior to consummation of any
Exempt Resales or Agent Sales, any event shall occur as a result of which,
in the judgment of Holdings and its counsel or in the reasonable opinion
of your counsel, it becomes necessary to amend or supplement the Offering
Memorandum in order to make the statements therein, in the light of the
circumstances when the Offering Memorandum is delivered to an Eligible
Purchaser which is a prospective purchaser, not misleading, or if it is
necessary to amend or supplement the Offering Memorandum to comply with
applicable law, promptly to prepare an appropriate amendment or supplement
to the Offering Memorandum so that the statements therein as so amended or
supplemented will not, in the light of the circumstances when the Offering
Memorandum is so delivered, be misleading, or so the Offering Memorandum
will comply with applicable law.
(e) To cooperate with you and your counsel in connection with the
qualification of the Securities under the state securities or Blue Sky
laws of such jurisdictions in the United States as you may request and to
continue such qualification in effect so long as required for the Exempt
Resales and Agent Sales; provided, however that Holdings shall not be
required in connection therewith to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that
would subject it to the service of process in suits or taxation, other
than as to matters and transactions relating to the Exempt Resales and
Agent Sales, in any jurisdiction where it is not now so subject. Holdings
will continue such qualification in effect so long as required by law for
distribution of the Securities.
(f) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement is terminated, to pay all costs,
expenses, fees and taxes incident to and in connection with: (i) the
preparation, printing, processing, distribution and delivery of the
Preliminary Offering Memorandum and the Offering Memorandum (including,
without limitation, financial statements and exhibits) and all amendments
and supplements thereto (but not, however, legal fees and expenses of your
counsel incurred in connection with any of the foregoing), (ii) the
preparation (including, without limitation, word processing and
duplication costs) printing, processing, distribution and delivery of this
Agreement and the other Operative Documents (but not, however, legal fees
and expenses of your counsel incurred in connection with any of the
foregoing), and all preliminary and final Blue Sky memoranda and all other
agreements, memoranda, correspondence and other documents prepared and
delivered in connection herewith and with the Exempt Resales, (iii) the
issuance and delivery by Holdings of the Securities,
(iv) the qualification of the Securities for offer and sale under the
securities or Blue Sky
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laws of the several states (including, without limitation, the reasonable
fees and disbursements of your counsel relating to such registration or
qualification not to exceed $7,500), (v) furnishing such copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and all
amendments and supplements thereto, as may be reasonably requested for use
in connection with Exempt Resales, (vi) the preparation of certificates
for the Securities (including, without limitation, printing and engraving
thereof), (vii) the fees, disbursements and expenses of Holdings' counsel
and accountants, (viii) the fees and expenses of the Trustee and its
counsel under the Exchange Debenture Indenture, (ix) all expenses and
listing fees in connection with the application for designation of the
Senior Preferred Stock in the National Association of Securities Dealers,
Inc. ("NASD") Private Offerings, Resales and Trading through Automated
Linkages ("PORTAL") market, (x) all fees and expenses (including fees and
expenses of counsel) of Holdings in connection with the approval of the
Securities by DTC for "book-entry" transfer, (xi) any fees charged by
rating agencies for rating the Securities, (xii) all "road show" and other
marketing expenses related to the preparation of slides, videotapes and
printed marketing materials, and travel, hotel, food and entertainment
expenses of affiliates of Holdings and (xiii) the performance by Holdings
of its other obligations under this Agreement and the other Operative
Documents.
(g) To use the proceeds from the sale of the Units in the manner
described in the Offering Memorandum under the caption "Use of Proceeds."
(h) Not to voluntarily claim, and to resist actively any attempts to
claim, the benefit of any usury laws against the holders of any
Securities.
(i) To do and perform all things required to be done and performed
under this Agreement by them prior to or after the Closing Date and to
satisfy all conditions precedent on their part to the delivery of the
Units that are within their control.
(j) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the
Securities Act) that would be integrated with the sale of the Securities
in a manner that would require the registration under the Securities Act
of the sale to you or Eligible Purchasers of the Securities.
(k) For so long as any of the Securities remain outstanding and
during any period in which Holdings is not subject to Section 13 or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
to make available to any QIB or beneficial owner of the Securities in
connection with any sale thereof and any prospective purchaser of such
Securities from such QIB or beneficial owner, the information required by
Rule 144A(d)(4) under the Securities Act.
(l) To cause the Exchange Offer to be made in the appropriate form
to permit registration of the Series B Senior Preferred Stock to be
offered in exchange for the Series A Senior Preferred Stock and to comply
with all applicable federal and state securities laws in connection with
the Exchange Offer.
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(m) To use their best efforts to effect the inclusion of the Senior
Preferred Stock in PORTAL.
(n) During a period of five years following the date of this
Agreement, to deliver to you promptly upon their becoming available,
copies of all current, regular and periodic reports filed by Holdings or
Anvil with the Commission or any securities exchange or with any
governmental authority succeeding to any of the Commission's functions and
such other publicly available information concerning Holdings and Anvil as
the Initial Purchaser shall reasonably request.
(o) Not to, and to use its reasonable best efforts to cause its
affiliates not to, offer, sell, contract to sell or grant any option to
purchase or otherwise transfer or dispose of any preferred stock or debt
security issued or guaranteed by Holdings or Anvil (other than (i) the
Units, the Senior Preferred Stock and the Class B Common comprising the
Units, (ii) the Series A Senior Notes, (iii) the Series B Senior Notes,
(iv) the Series B Senior Preferred Stock and (v) the Exchange Debentures
issuable pursuant to the terms of the Senior Preferred Stock), or any
security convertible into or exchangeable or exercisable for any such
preferred stock or debt security, for a period of 90 days after the
Closing Date, without your prior written consent.
(p) Prior to or concurrently with the Closing, to enter into the
Registration Rights Agreement in substantially the form attached hereto as
Exhibit A in order to permit registration of the Series B Senior Preferred
Stock to be offered in exchange for the Series A Senior Preferred Stock as
contemplated thereby and/or the shelf registration of the Senior Preferred
Stock.
(q) To comply with all agreements set forth in the representation
letter of Holdings to DTC relating to the approval of the Units by DTC for
"book-entry" transfer.
(r) During the two year period following the Closing Date, neither
Holdings nor Anvil will, nor will they permit any of their affiliates (as
defined for the purposes of Rule 144 under the Securities Act) to, resell
any of the Units that may be acquired by any of them other than such Units
as may be acquired by affiliates on the Closing Date.
(s) To cause the Certificate of Designation to be filed with the
appropriate authorities prior to the Closing Date.
5. Representations and Warranties. (a) Holdings represents and
warrants to you that:
(i) The Offering Memorandum does not, and any supplement or
amendment to it will not, contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and
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warranties contained in this paragraph (i) shall not apply to statements
in or omissions from the Offering Memorandum (or any supplement or
amendment thereto) made in reliance upon and in conformity with
information furnished to Holdings in writing by you expressly for use
therein, which information is specified in the second paragraph of Section
6(c). No stop order preventing the use of the Preliminary Offering
Memorandum or the Offering Memorandum, or any amendment or supplement
thereto, or any order asserting that any of the transactions contemplated
by this Agreement are subject to the registration requirements of the
Securities Act, has been issued.
(ii) When the Securities are issued and delivered pursuant to this
Agreement, none of the Securities will be of the same class (within the
meaning of Rule 144A under the Securities Act) as securities of Holdings
or Anvil that are listed on a national securities exchange registered
under Section 6 of the Exchange Act or that are quoted in a United States
automated inter-dealer quotation system.
(iii) Each of Holdings, Anvil and their respective subsidiaries has
been duly organized and is validly existing in good standing under the
laws of its respective jurisdiction of organization. Each of Holdings,
Anvil and their respective subsidiaries has all requisite corporate power,
as applicable, and authority to carry on its business as it is currently
being conducted and as described in the Offering Memorandum and to own,
lease and operate its properties. Each of Holdings, Anvil and their
respective subsidiaries is duly qualified and in good standing as a
foreign entity authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property requires
such qualification, except where failure to have such qualification would
not have a Material Adverse Effect (as defined below).
(iv) The entities listed on Schedule I hereto are the only
subsidiaries, direct or indirect, of Holdings. Holdings owns, directly or
indirectly through other subsidiaries, the percentage listed in Schedule I
hereto of the outstanding capital stock or other securities evidencing
equity ownership of such subsidiaries, free and clear of any security
interest, claim, lien, limitation on voting rights or encumbrance (except
for those arising under the Credit Agreement or the New Credit Agreement
or pursuant to state and federal securities laws); and all of such
securities have been duly authorized, validly issued, are fully paid and
nonassessable and were not issued in violation of any preemptive or
similar rights. There are no outstanding subscriptions, rights, warrants,
calls, commitments of sale or options to acquire, or instruments
convertible into or exchangeable for, any such shares of capital stock or
other equity interest of such subsidiaries. Neither Holdings nor any of
its subsidiaries has any investments in the securities of other persons
and there are no outstanding subscriptions, rights, warrants, calls,
commitments of sale or options to acquire, or instruments convertible into
or exchangeable for, any such securities of such person.
(v) The shares of issued and outstanding common stock of Holdings
and Anvil have been duly authorized and validly issued and are fully paid
and non-assessable and were not issued in violation of or subject to any
preemptive or similar rights. All of the
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outstanding capital stock of Anvil is owned by Holdings. Except as
disclosed in the Offering Memorandum, there are no outstanding
subscriptions, rights, warrants, calls, commitments of sale or options to
acquire, or instruments convertible into or exchangeable for, any such
shares of capital stock or other equity interest of Holdings or Anvil.
(vi) Each of Holdings and Anvil has all requisite corporate power
and authority to execute, deliver and perform its obligations under the
Operative Documents to which they are parties and to consummate the
transactions contemplated hereby and thereby, including, without
limitation, with respect to Holdings, the corporate power and authority to
issue, sell and deliver the Securities as provided herein and therein.
(vii) This Agreement has been duly and validly authorized, executed
and delivered by Holdings and (assuming the due execution and delivery
thereof by you) is the legally valid and binding agreement of Holdings,
enforceable against Holdings in accordance with its terms (except as such
enforceability may be limited by any exceptions to enforceability of the
type set forth in the legal opinions delivered to you pursuant to Section
7(g) hereof).
(viii) The Certificate of Designation has been duly authorized by
all necessary corporate and stockholder action.
(ix) The Unit Agreement has been duly and validly authorized by
Holdings and, when duly executed and delivered by Holdings (assuming the
due execution and delivery thereof by the Unit Agent), will be the legally
valid and binding obligation of Holdings, enforceable against Holdings in
accordance with its terms (except as such enforceability may be limited by
any exceptions to enforceability of the type set forth in the legal
opinions delivered to you pursuant to Section 7(g) hereof).
(x) The Exchange Debenture Indenture has been duly and validly
authorized by Holdings and, when duly executed and delivered by Holdings
(assuming the due execution and delivery thereof by the Trustee), will be
the legally valid and binding obligation of Holdings, enforceable against
Holdings in accordance with its terms (except as such enforceability may
be limited by any exceptions to enforceability of the type set forth in
the legal opinions delivered to you pursuant to Section 7(g) hereof). The
Exchange Debenture Indenture, when executed and delivered, will conform to
the description thereof in the Offering Memorandum. The Exchange Debenture
Indenture conforms to the requirements of the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act").
(xi) The Registration Rights Agreement has been duly and validly
authorized by Holdings and, when duly executed and delivered by Holdings
(assuming the due execution and delivery thereof by you), will be the
legally valid and binding obligation of Holdings, enforceable against
Holdings in accordance with its terms (except as such enforceability may
be limited by any exceptions to enforceability of the type set forth in
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the legal opinions delivered to you pursuant to Section 7(g) hereof). The
Registration Rights Agreement, when executed and delivered, will conform
to the description thereof in the Offering Memorandum.
(xii) The Securityholders Agreement has been duly and validly
authorized by Holdings and, when duly executed and delivered by Holdings
(assuming the due execution and delivery thereof by the other parties
thereto), will be the legally valid and binding obligation of Holdings,
enforceable against Holdings in accordance with its terms (except as such
enforceability may be limited by any exceptions to enforceability of the
type set forth in the legal opinions delivered to you pursuant to Section
7(g) hereof). The Securityholders Agreement, when executed and delivered,
will conform to the description thereof in the Offering Memorandum.
(xiii) The Units have been duly and validly authorized for issuance
and sale to you by Holdings pursuant to this Agreement and, when issued
and delivered against payment therefor in accordance with the terms
hereof, will conform to the description thereof in the Offering
Memorandum.
(xiv) The Series A Senior Preferred Stock have been duly and validly
authorized for issuance and sale to you by Holdings pursuant to this
Agreement and, when issued and delivered against payment therefor in
accordance with the terms hereof, the Series A Senior Preferred Stock will
be validly issued, fully paid, non-assessable, will conform to the
description thereof in the Offering Memorandum, and will be entitled to
the rights, privileges and preferences set forth in the Certificate of
Designation, and the issuance of such Series A Senior Preferred Stock will
not be subject to any preemptive or similar rights.
(xv) The Class B Common have been duly and validly authorized for
issuance and sale to you by Holdings pursuant to this Agreement and, when
issued and delivered against payment therefor in accordance with the terms
hereof, the Class B Common will be validly issued, fully paid and
nonassessable and will conform to the description thereof in the Offering
Memorandum, and the issuance of such Class B Common will not be subject to
any preemptive or similar rights.
(xvi) The Series B Senior Preferred Stock have been duly and validly
authorized for issuance by Holdings, and when issued and delivered in
accordance with the terms of the certificate of designations therefor and
the Registration Rights Agreement, will conform to the description thereof
in the Offering Memorandum and will be entitled to the rights, privileges
and preferences set forth in such certificate of designations, and the
issuance of such Series B Senior Preferred Stock will not be subject to
any preemptive or similar rights.
(xvii) The Exchange Debentures have been duly and validly authorized
for issuance by Holdings, and when issued and authenticated in accordance
with the terms of the Exchange Debenture Indenture and delivered in
exchange for the Senior Preferred
11
Stock in accordance with the terms of the Certificate of Designation, will
be the legally valid and binding obligations of Holdings, enforceable
against Holdings in accordance with their terms (except as such
enforceability may be limited by any exceptions to enforceability of the
type set forth in the legal opinions delivered to you pursuant to Section
7(g) hereof) and entitled to the benefits of the Exchange Debenture
Indenture. The Exchange Debentures, when issued and delivered, will
conform to the description thereof in the Offering Memorandum.
(xviii) None of Holdings or Anvil or any of their subsidiaries is
(A) in violation of its respective charter or bylaws or other
organizational documents, (B) in default in the performance of any bond,
debenture, note, indenture, mortgage, deed of trust or other agreement or
instrument to which it is a party or by which it is bound or to which any
of its properties is subject, or (C) is in violation of any law, statute,
rule, regulation, judgment or court decree applicable to Holdings or
Anvil, any of their subsidiaries or their assets or properties that in the
case of clauses (A), (B) and (C) above, (y) would reasonably be expected,
individually or in the aggregate, to result in a material adverse effect
on the assets, properties, business, results of operations, condition
(financial or otherwise) or business prospects of Holdings or Anvil and
their subsidiaries, taken as a whole or (z) in any manner draw into
question the validity of this Agreement or any other Operative Document
(any of the events set forth in clauses (y) or (z), a "Material Adverse
Effect"). There exists no condition that, with notice, the passage of time
or otherwise, would constitute a default under any such document or
instrument.
(xix) The execution, delivery and performance by each of Holdings
and Anvil of this Agreement and the other Operative Documents to which it
is a party, the issuance and sale of the Securities, the adoption or
performance of Holdings of its obligations under the Certificate of
Designation, the consummation of the transactions contemplated hereby and
thereby, will not violate, conflict with or constitute a breach of any of
the terms or provisions of, or a default under (or an event that with
notice or the lapse of time, or both, would constitute a default), or
require consent under, or result in the imposition of a lien or
encumbrance on any properties of Holdings or Anvil or any of their
subsidiaries, or an acceleration of indebtedness pursuant to, (i) the
charter or bylaws of Holdings or Anvil or any of their subsidiaries, (ii)
any bond, debenture, note, indenture, mortgage, deed of trust or other
agreement or instrument to which Holdings or Anvil or any of their
subsidiaries is a party or by which any of them or their property is or
may be bound, (iii) any statute, rule or regulation applicable to Holdings
or Anvil, any of their subsidiaries or any of their assets or properties,
or (iv) any judgment, order or decree of any court or governmental agency
or authority having jurisdiction over Holdings or Anvil, any of their
subsidiaries or their assets or properties, except insofar as any of (ii),
(iii) or (iv) above would not reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect. No consent,
approval, authorization or order of, or filing, registration,
qualification, license or permit of or with, any court or governmental
agency, body or administrative agency is required for the execution,
delivery and performance of this Agreement and the other Operative
Documents, the issuance and sale of the Securities, the consummation of
the transactions contemplated
12
hereby and thereby, except such as have been obtained and made (or, in the
case of the Registration Rights Agreement, will be obtained and made)
under the Securities Act, the Trust Indenture Act and state securities or
Blue Sky laws and regulations or such as may be required by the NASD,
except insofar as the failure to obtain such consent, appraisal,
authorization or order of, or filing, registration, qualification, license
or permit would not reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect.
(xx) No consents or waivers from any other person are required for
the execution, delivery and performance of this Agreement and the other
Operative Documents, the issuance and sale of the Securities and the
consummation of the transactions contemplated hereby and thereby, other
than such consents and waivers as have been obtained (or, in the case of
the Registration Rights Agreement, will be obtained), except where the
failure to have obtained any of the foregoing would not reasonably be
expected to have a Material Adverse Effect.
(xxi) There is (i) no action, suit or proceeding before or by any
court, arbitrator or governmental agency, body or official, domestic or
foreign, now pending or, to the best knowledge of Holdings, Anvil and
their subsidiaries, threatened or contemplated to which Holdings, Anvil or
any of their subsidiaries or any benefit plan maintained thereby is or may
be a party or to which the business or property of Holdings, Anvil or any
of their subsidiaries is or may be subject, (ii) no statute, rule,
regulation or order that has been enacted, adopted or issued by any
governmental agency or that has been proposed by any governmental body,
(iii) no injunction, restraining order or order of any nature by a federal
or state court or foreign court of competent jurisdiction to which
Holdings, Anvil or any of their subsidiaries is or may be subject or to
which the business, assets or property of Holdings, Anvil or their
subsidiaries are or may be subject issued that would, in the case of
clauses (i), (ii) and (iii) above, reasonably be expected to, individually
or in the aggregate, result in a Material Adverse Effect.
(xxii) There is (i) no significant unfair labor practice complaint
pending against Holdings, Anvil or any of their subsidiaries nor, to the
best knowledge of Holdings, Anvil and their subsidiaries, threatened
against any of them, before the National Labor Relations Board, any state
or local labor relations board or any foreign labor relations board, and
no significant grievance or significant arbitration proceeding arising out
of or under any collective bargaining agreement is so pending against
Holdings, Anvil or any of their subsidiaries or, to the best knowledge of
Holdings, Anvil and their subsidiaries, threatened against any of them,
(ii) no significant strike, labor dispute, slowdown or stoppage pending
against Holdings, Anvil or any of their subsidiaries nor, to the best
knowledge of Holdings, Anvil and their subsidiaries, threatened against
Holdings, Anvil or any of their subsidiaries and (iii) to the best
knowledge of Holdings, Anvil and their subsidiaries, no union
representation question exists with respect to the employees of Holdings,
Anvil and their subsidiaries and, to the best knowledge of Holdings, Anvil
and their subsidiaries, no union organizing activities are taking place,
except insofar as any of the foregoing would not reasonably be expected,
either individually or in the
13
aggregate, to have a Material Adverse Effect. None of Holdings, Anvil or
any of their subsidiaries has violated any federal, state or local law or
foreign law relating to discrimination in hiring, promotion or pay of
employees, nor any applicable wage or hour laws, nor any provision of the
Employee Retirement Income Security Securities Act of 1974, as amended
("ERISA"), or the rules and regulations thereunder, or analogous foreign
laws and regulations, which would reasonably be expected, either
individually or in the aggregate, to have a Material Adverse Effect.
(xxiii) Each of Holdings, Anvil and their subsidiaries is in
compliance with all applicable existing federal, state, local and foreign
laws and regulations relating to the protection of human health or the
environment or imposing liability or standards of conduct concerning any
Hazardous Material (as defined below) (collectively, "Environmental
Laws"), except for such instances of noncompliance that, either singly or
in the aggregate, would not reasonably be expected to have a Material
Adverse Effect. The term "Hazardous Material" means (i) any "hazardous
substance" as defined by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, (ii) any "hazardous
waste" as defined by the Resource Conservation and Recovery Act of 1976,
as amended, (iii) any petroleum or petroleum product (iv) any
polychlorinated biphenyl and (v) any pollutant or contaminant or
hazardous, dangerous or toxic chemical, material, waste or substance
regulated under or within the meaning of any other Environmental Law.
There is no alleged liability, or, to the best knowledge of Holdings,
Anvil and their subsidiaries, potential liability (including, without
limitation, alleged or potential liability for investigatory costs,
cleanup costs, governmental response costs, natural resources damages,
property damages, personal injuries, or penalties) of Holdings, Anvil or
any of their subsidiaries arising out of, based on, or resulting from (A)
the presence or release into the environment of any Hazardous Material at
any location currently or previously owned by Holdings, Anvil or any of
their subsidiaries or at any location currently or previously used or
leased by Holdings, Anvil or any of their or (B) any violation or alleged
violation of any Environmental Law, except in each case with respect to
clauses (A) and (B), alleged or potential liabilities that, singly or in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect.
(xxiv) Each of Holdings, Anvil and their subsidiaries has (i) good
and marketable title to all of the properties and assets described in the
Offering Memorandum as owned by it, free and clear of all liens, charges,
encumbrances and restrictions, except such as are described in the
Offering Memorandum or for liens for taxes not yet due and payable or as
would not reasonably be expected, either individually or in the aggregate,
to have a Material Adverse Effect, (ii) peaceful and undisturbed
possession under all leases to which it is party as lessee, except where
the failure to have such possession would not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect, (iii)
all licenses, certificates, permits, authorizations, approvals, franchises
and other rights from, and has made all declarations and filings with, all
federal, state, local and foreign authorities, all self-regulatory
authorities and all courts and other tribunals (each an "Authorization")
necessary to engage in the business currently conducted by it in the
manner described in the Offering Memorandum, except where failure to hold
such
14
Authorizations would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect and (iv) no reason to believe
that any governmental body or agency is considering limiting, suspending
or revoking any such Authorization. All such Authorizations are valid and
in full force and effect and Holdings, Anvil and their subsidiaries are in
compliance in all material respects with the terms and conditions of all
such Authorizations and with the rules and regulations of the regulatory
authorities having jurisdiction with respect thereto, except insofar as
the failure to have any of the foregoing would not reasonably be expected
either individually or in the aggregate, to have a Material Adverse
Effect. All leases to which Holdings, Anvil or any of their subsidiaries
is a party are valid and binding and to the knowledge of Holdings and
Anvil no material defaults by the landlord are existing under any such
lease.
(xxv) Each of Holdings, Anvil and their subsidiaries owns or
possesses or has the right to use all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(collectively, the "Intellectual Property") presently employed by it in
connection with the businesses now operated by them as described in the
Offering Memorandum, except insofar as failure to have any of the
foregoing would not reasonably be expected to have a Material Adverse
Effect, and none of Holdings, Anvil or any of their subsidiaries has
received any notice of infringement of or conflict with asserted rights of
others with respect to any of the foregoing which would have a Material
Adverse Effect. The use of the Intellectual Property in connection with
the business and operations of Holdings and its subsidiaries does not
infringe on the rights of any person, except infringements which would not
reasonably be expected, either individually or in the aggregate, to have a
Material Adverse Effect.
(xxvi) All tax returns required to be filed by Holdings, Anvil or
any of their subsidiaries, in all jurisdictions, have been so filed. All
taxes, including withholding taxes, penalties and interest, assessments,
fees and other charges due or claimed to be due from such entities or that
are due and payable have been paid, other than those being contested in
good faith and for which adequate reserves have been provided or those
currently payable without penalty or interest. None of Holdings, Anvil or
any of their subsidiaries knows of any material proposed additional tax
assessments against it or any of its subsidiaries or the assets or
property of Holdings or any of its subsidiaries.
(xxvii) None of Holdings, Anvil or any of its subsidiaries is (i) an
"investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), or analogous foreign laws and regulations, or
(ii) a "holding company" or a "subsidiary company" or an "affiliate" of a
holding company within the meaning of the Public Utility Holding Company
Act of 1935, as amended (the "Public Utility Holding Company Act"), or
analogous foreign laws and regulations.
15
(xxviii) There are no holders of securities of Holdings, Anvil or
any of their subsidiaries who, by reason of the execution by Holdings and
Anvil of this Agreement or any other Operative Document to which it is a
party or the consummation of the transactions contemplated hereby and
thereby, have the right to request or demand that Holdings or Anvil
register under the Securities Act or analogous foreign laws and
regulations securities held by them.
(xxix) Each certificate signed by any officer of Holdings and
delivered to the Initial Purchaser or counsel for the Initial Purchaser
shall be deemed to be a representation and warranty by Holdings to the
Initial Purchaser as to the matters covered thereby.
(xxx) Holdings and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that: (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability
for assets; (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 thereto.
(xxxi) Holdings and each of its subsidiaries maintains insurance
covering their properties, operations, personnel and businesses. Such
insurance insures against such losses and risks as are believed by them to
be adequate in accordance with customary industry practice to protect
Holdings and its subsidiaries and their businesses. None of Holdings,
Anvil nor any of their subsidiaries has received notice from any insurer
or agent of such insurer that substantial capital improvements or other
expenditures will have to be made in order to continue such insurance. All
such insurance is outstanding and, to the best of the knowledge of
Holdings and Anvil duly in force on the date hereof and will be
outstanding and duly in force on the Closing Date.
(xxxii) Neither Anvil nor Holdings has (i) taken (or will take),
directly or indirectly, any action designed to, or that might reasonably
be expected to, cause or result in stabilization or manipulation of the
price of any security of Holdings or Anvil to facilitate the sale or
resale of the Securities or (ii) since the date of the Preliminary
Offering Memorandum (A) sold, bid for, purchased or paid any person other
than the Initial Purchaser any compensation for soliciting purchases of,
the Securities or (B) paid or agreed to pay to any person any compensation
for soliciting another to purchase any other securities of Holdings or
Anvil.
(xxxiii) No registration under the Securities Act of the Securities
is required for the sale of the Units to the Initial Purchaser as
contemplated hereby or for the Exempt Resales and the Agent Sales assuming
(i) that the purchasers who buy the Securities in the Exempt Resales and
the Agent Sales are either QIBs or Accredited Investors and
16
(ii) the accuracy of the Initial Purchaser's representations in Section
5(b) hereof. No form of general solicitation or general advertising was
used by Holdings, Anvil or any of their representatives in connection with
the offer and sale of any of the Securities or in connection with Exempt
Resales or the Agent Sales, including, but not limited to, articles,
notices or other communications published in any newspaper, magazine, or
similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general solicitation or
general advertising. No securities of the same class or series as the
Securities have been issued and sold by Holdings or Anvil within the
six-month period immediately prior to the date hereof. Holdings will not
sell any Securities pursuant to Agency Sales without having received prior
to or concurrent with any such sale a letter containing representations
and agreements in the form attached as Annex A to the Offering Memorandum.
Neither Anvil nor Holdings have entered into any contractual arrangement
with respect to the distribution of the Securities except for this
Agreement.
(xxxiv) The execution and delivery of this Agreement, the other
Operative Documents and the sale of the Securities to be purchased by the
Eligible Purchasers will not involve any prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Internal Revenue
Code of 1986. The representation made by Holdings and Anvil in the
preceding sentence is made in reliance upon and subject to the accuracy
of, and compliance with, the representations and covenants made or deemed
made by the Eligible Purchasers as set forth in the Offering Memorandum
under the Section entitled "Notice to Investors."
(xxxv) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date, and each amendment or supplement thereto, as
of its date, contains all the information specified in, and meets the
requirements of, Rule 144A(d)(4) under the Securities Act.
(xxxvi) Subsequent to the respective dates as of which information
is given in the Offering Memorandum and up to the Closing Date, except as
set forth in the Offering Memorandum, none of Holdings, Anvil and their
subsidiaries has incurred any liabilities or obligations, direct or
contingent, which are material to Holdings and its subsidiaries taken as a
whole, nor entered into any transaction not in the ordinary course of
business, nor has there been, singly or in the aggregate, any material
adverse change, or any development which would reasonably be expected to
involve a material adverse change, in the assets, properties, business,
results of operations, condition (financial or otherwise), affairs or
prospects of Holdings and its subsidiaries, taken as a whole (a "Material
Adverse Change") and there have not been dividends or distributions (other
than to Anvil) of any kind declared, paid or made by Holdings or any of
its subsidiaries on any class of its capital stock.
(xxxvii) None of Holdings or Anvil or, to the best of their
knowledge, any agent thereof acting on behalf of Holdings or Anvil has
taken, and none of them will take, any action that would reasonably expect
to cause this Agreement or the issuance or sale of
17
the Securities to violate Regulation G (12 C.F.R. Part 207), Regulation T
(12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X
(12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve
System or analogous foreign laws and regulations.
(xxxviii) The accountants who have certified or shall certify the
financial statements and supporting schedules included or to be included
as part of the Offering Memorandum are independent accountants under Rule
101 of AICPA's Code of Professional Conduct and its interpretations and
rulings. The consolidated historical statements fairly present the
consolidated financial condition and results of operations of Holdings and
its subsidiaries at the respective dates and for the respective periods
indicated, in accordance with generally accepted accounting principles
consistently applied throughout such periods, except as stated therein.
The pro forma financial statements including in the Offering Memorandum
have been prepared on a basis consistent with such historical statements,
except for the pro forma adjustments specified therein, and give effect to
assumptions made on a reasonable basis and present fairly the historical
and proposed transactions contemplated by this Agreement and the other
Operative Documents. Other financial and statistical information and data
included in the Offering Memorandum, historical and pro forma, are
accurately presented and prepared on a basis consistent with such
financial statements and the books and records of Holdings and its
subsidiaries.
(xxxix) Neither Holdings nor Anvil intends to, nor does it believe
that it will, incur debts beyond its ability to pay such debts as they
mature. Upon the completion of the Recapitalization as described in "The
Recapitalization" in the Offering Memorandum, Holdings and Anvil believe
that the present fair saleable value of the assets of each of Holdings and
Anvil will exceed the amount that will be required to be paid on or in
respect of the existing debts and other liabilities (including contingent
liabilities) of such person as they become absolute and matured. The
assets of each of Holdings and Anvil, upon the completion of the
Recapitalization, will not constitute unreasonably small capital to carry
out their respective businesses as now conducted, including the capital
needs of each of Holdings and Anvil, taking into account their respective
projected capital requirements and capital availability. Each of Holdings
and Anvil currently believe it is, and immediately after the Closing Time
(after giving effect to the Recapitalization) will be, Solvent. As used
herein, the term "Solvent" means, with respect to a person on a particular
date, that on such date (A) the fair market value of the assets of such
person is greater than the total amount of liabilities (including
contingent liabilities) of such person, (B) the present fair saleable
value of the assets of such person is greater than the amount that will be
required to pay the probable liabilities of such person on its debts as
they become absolute and matured, (C) such person is able to realize upon
its assets and pay its debts and other liabilities, including contingent
obligations, as they mature and (D) such person does not have an
unreasonably small capital.
(xl) There are no contracts, agreements or understandings between
Holdings or Anvil or any of their subsidiaries and any person that would
give rise to a valid claim against Holdings or Anvil, its subsidiaries or
the Initial Purchaser for a brokerage
18
commission, finder's fee or like payment in connection with the issuance,
purchase and sale of the Securities.
(xli) Prior to the Exchange Offer or the effectiveness of the Shelf
Registration Statement, the Exchange Debenture Indenture is not required
to be qualified under the Trust Indenture Act.
(xlii) Holdings has delivered to the Initial Purchaser true and
correct copies of the Credit Agreement and the New Credit Agreement, as
the case may be, and all amendments, alterations, modifications, or
waivers thereto or in the exhibits or schedules thereto through the date
hereof.
Holdings acknowledges that the Initial Purchaser and, for purposes
of the opinions to be delivered to the Initial Purchaser pursuant to Section 7
hereof, counsel to Holdings and counsel to the Initial Purchaser, will rely upon
the accuracy and truth of the foregoing representations and hereby consent to
such reliance.
(b) The Initial Purchaser represents and warrants to Holdings and
agrees that:
(i) The Initial Purchaser is a QIB, with such knowledge and
experience in financial and business matters as are necessary in order to
evaluate the merits and risks of an investment in the Securities and
acknowledges that the Securities have not been registered under the
Securities Act and that such securities may not be offered or sold within
the United States or to, or for the account or benefit of, U.S. persons
(as defined in Regulation S under the Securities Act) except in pursuant
to an exemption from the registration requirements of the Securities Act.
(ii) The Initial Purchaser (A) is not acquiring the Securities with
a view to any distribution thereof that would violate the Securities Act
or the securities laws of any state of the United States or any other
applicable jurisdiction and (B) will be reoffering and reselling the
Securities purchased by it only to QIBs in reliance on the exemption from
the registration requirements of the Securities Act provided by Rule 144A
and to Accredited Investors that execute and deliver a letter containing
representations and agreements in the form attached as Annex A to the
Offering Memorandum in a private placement exempt from the registration
requirements of the Securities Act.
(iii) The Initial Purchaser will offer the Securities as agent
pursuant hereto only to persons who it reasonably believes to be Eligible
Purchasers.
(iv) No form of general solicitation or general advertising has been
or will be used by the Initial Purchaser or any of its representatives in
connection with the offer and sale of any of the Securities, including,
but not limited to, articles, notices or other communications published in
any newspaper, magazine, or similar medium or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising.
19
(v) The Initial Purchaser agrees that, in connection with the Exempt
Resales, it will solicit offers to buy the Securities only from, and will
offer to sell the Securities only to, QIBs and Accredited Investors. The
Initial Purchaser further agrees (A) that it will offer to sell the
Securities only to, and will solicit offers to buy the Securities only
from (l) QIBs who in purchasing such Securities will be deemed to have
represented and agreed that they are purchasing the Securities for its own
accounts or accounts with respect to which they exercise sole investment
discretion and that they or such accounts are QIBs and (2) Accredited
Investors who make the representations contained in, and execute and
return to the Initial Purchaser, a certificate in the form of Annex A
attached to the Offering Memorandum and (B) that, in the case of such QIBs
and Accredited Investors, acknowledges and agrees that such Securities
will not have been registered under the Securities Act and may be resold,
pledged or otherwise transferred only (x)(I) to a person who the seller
reasonably believes is a QIB in a transaction meeting the requirements of
Rule 144A, (II) in a transaction meeting the requirements of Rule 144,
(III) to a foreign person in a transaction meeting the requirements of
Rule 904 under the Securities Act or (IV) in accordance with another
exemption from the registration requirements of the Securities Act (and
based upon an opinion of counsel if Holdings so requests), (y) to Anvil,
or (z) pursuant to an effective registration statement under the
Securities Act and, in each case, in accordance with any applicable
securities laws of any state of the United States or any other applicable
jurisdiction and (C) that the holder will, and each subsequent holder is
required to, notify any purchaser from it of the security evidenced
thereby of the resale restrictions set forth in (B) above.
(vi) The Initial Purchaser will have provided each Eligible
Purchaser with a copy of the Offering Memorandum prior to or concurrent
with settlement of each initial resale pursuant to Rule 144A, either with
the confirmation of such initial resale or otherwise.
(vii) The Initial Purchaser (A) has not solicited, and will not
solicit, offers to purchase any of the Securities from, (B) it has not
sold, and will not sell, any of the Securities to, and (C) it has not
distributed and will not distribute, the Offering Memorandum to, any
person or entity in any jurisdiction outside of the United States except,
in each case, in compliance in all material respect with all applicable
laws.
(viii) The Initial Purchaser also understands that Holdings and, for
purposes of the opinions to be delivered to you pursuant to Section 7
hereof, counsel to Holdings and counsel to the Initial Purchaser, will
rely upon the accuracy and truth of the foregoing representations and
hereby consents to such reliance.
6. Indemnification.
(a) Holdings agrees to indemnify and hold harmless the Initial
Purchaser and each person, if any, who controls (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) the Initial
Purchaser (any of such persons hereinafter referred to as a "controlling
person"), and the respective officers, directors, partners, employees,
representatives
20
and agents of the Initial Purchaser or any controlling person (each such entity
or person an "Indemnified Person") to the fullest extent lawful, from and
against any and all losses, claims, damages, assessments, judgments, actions and
other liabilities (collectively, "Liabilities"), and will reimburse each
Indemnified Person for all fees and expenses (including without limitation, the
reasonable fees and expenses of counsel to any Indemnified Person)
(collectively, "Expenses") as they are incurred in investigating, preparing,
pursuing or defending any claim or action, or any investigation or proceeding by
any governmental agency or body, whether or not in connection with pending or
threatened litigation and whether or not any Indemnified Person is a party
(collectively, "Securities Actions"), directly or indirectly caused by, related
to, based upon, arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in the Preliminary
Offering Memorandum or the Offering Memorandum (or any amendment or supplement
thereto), or by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except insofar as such Liabilities or Expenses are caused by an untrue statement
or omission or alleged untrue statement or omission (i) that is made in reliance
upon and in conformity with information furnished in writing to Holdings by the
Initial Purchaser expressly for use therein, which information is specified in
the second paragraph of Section 6(c) or (ii) that is made in any Preliminary
Offering Memorandum if a copy of the Offering Memorandum (as then amended or
supplemented) was not sent or given by or on behalf of the Initial Purchaser to
the person asserting any such loss, claim, damage, liability or expense at or
prior to the written confirmation of the sale of the Units and the Offering
Memorandum (as then amended or supplemented) would have corrected each untrue
statement or omission. Holdings will also reimburse each Indemnified Person for
all Expenses as incurred in connection with enforcing such Indemnified Person's
rights under this Agreement; provided, that if Holdings reimburses the Initial
Purchaser hereunder for any Expenses, the Initial Purchaser hereby agrees to
refund such reimbursement of Expenses to the extent that the Initial Purchaser
is not entitled to be indemnified hereunder. Holdings shall notify the Initial
Purchaser promptly of the institution, threat or assertion of any Securities
Action in connection with the matters addressed by this Agreement which involves
Holdings or an Indemnified Person.
(b) Upon receipt by an Indemnified Person of notice of an Securities
Action against such Indemnified Person with respect to which indemnity may be
sought under Section 6(a), such Indemnified Person shall promptly notify
Holdings in writing, provided that the failure to so notify Holdings shall not
relieve Holdings from any liability which Holdings may have on account of this
indemnity or otherwise, except to the extent Holdings shall have been materially
prejudiced by such failure. Holdings shall, if requested by such Indemnified
Person, assume the defense of any such Securities Action including the
employment of counsel reasonably satisfactory to such Indemnified Person. Any
Indemnified Person shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person, unless: (i) Holdings
has failed promptly to assume the defense and employ counsel reasonably
satisfactory to such indemnified party, (ii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party or (iii) the named parties to any such Securities Action
(including any impleaded parties) include such Indemnified Person
21
and Holdings, and such Indemnified Person shall have been advised by counsel
that there may be one or more legal defenses available to it which are different
from or in addition to those available to Holdings, provided that Holdings,
shall not in such event be responsible hereunder for the fees and expenses of
more than one firm of separate counsel in connection with any Securities Action
in the same jurisdiction, in addition to any local counsel. Holdings shall not
be liable for any settlement of any Securities Action effected without written
consent of Holdings (which shall not be unreasonably withheld) and Holdings
agrees to indemnify and hold harmless any Indemnified Person from and against
any Liability or Expense by reason of any settlement of any Securities Action
effected with the written consent of Holdings. Notwithstanding the immediately
preceding sentence, if at any time an Indemnified Person shall have requested
Holdings to reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the third sentence of this paragraph, Holdings agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than sixty (60)
business days after receipt by Holdings of the aforesaid request and (ii)
Holdings shall not have reimbursed the Indemnified Person in accordance with
such request prior to the date of such settlement. In addition, Holdings will
not, without the prior written consent of each Indemnified Person, settle any
pending or threatened Securities Action in respect of which indemnification or
contribution may be sought hereunder (whether or not any Indemnified Person is a
party thereto), unless such settlement includes an unconditional release of each
Indemnified Person from all Liabilities on claims that are the subject matter of
such proceedings.
(c) The Initial Purchaser agrees to indemnify and hold harmless
Holdings and its directors, officers and any person controlling (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
Holdings and the officers, directors, partners, employees, representatives and
agents of each such person, to the same extent as the foregoing indemnity from
Holdings to each of the Indemnified Persons, but only with respect to
Liabilities and Expenses incurred in investigating, preparing, pursuing or
defending Securities Actions directly or indirectly caused by, related to, based
upon, arising out of or in connection with any untrue statement or omission or
alleged untrue statement or omission of a material fact contained in the
Preliminary Offering Memorandum or the Offering Memorandum that was made in
reliance upon and in conformity with information relating to the Initial
Purchaser furnished in writing by or on behalf of the Initial Purchaser to
Holdings expressly for use in the Preliminary Offering Memorandum, the Offering
Memorandum or any amendment or supplement thereto, which information is
specified in the second paragraph of this Section 6(c). In case any Securities
Action shall be brought against Holdings or their directors or officers or any
such controlling person in respect of which indemnity may be sought against a
Initial Purchaser, such Initial Purchaser shall have the rights and duties given
Holdings, and Holdings or its directors or officers or such controlling person
shall have the rights and duties given to the Initial Purchaser by the preceding
paragraph. In no event shall the liability of the Initial Purchaser hereunder be
greater, in the aggregate, than the amount by which the total discounts and
commissions received by the Initial Purchaser with respect to the Units exceeds
the amount of any damages which the Initial Purchaser has otherwise been
required to pay by reason of a claim or action based on such information.
22
The statements in the Preliminary Offering Memorandum and the
Offering Memorandum set forth in the last paragraph on the cover page, the first
and second full paragraphs on page (iii), the first paragraph, the third
paragraph (other than the final sentence thereof) and the second and third
sentences of the fifth paragraph under "Plan of Distribution" constitute the
only information heretofore furnished to Holdings in writing by the Initial
Purchaser expressly for use in the Preliminary Offering Memorandum or the
Offering Memorandum, or any amendment or supplement thereto.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under Section 6(a), (b) and (c) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any Liabilities or Expenses referred to therein, then each indemnifying party,
in lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such Liabilities and
Expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party on the one hand and the indemnified
party on the other hand from the offering of the Units or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the indemnifying party and
the indemnified party, as well as any other relevant equitable considerations.
The relative benefits received by Holdings on the one hand and the Initial
Purchaser on the other hand, shall be in the same proportion as the total
proceeds from the sale of the Units (net of discounts and commissions but before
deducting expenses) received by Holdings on the one hand and the total discounts
and commissions received by the Initial Purchaser on the other hand, bear to the
total price of the Units, in each case, as set forth in the table on the
covering page of the Offering Memorandum. The relative fault of the indemnifying
party on the one hand and of the indemnified party on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Holdings and the Initial Purchaser agree that it would not be just
and equitable if contribution pursuant to this Section 6(d) were determined by
pro rata allocation (even if the Initial Purchaser were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
Liabilities or Expenses referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any legal or
other fees or expenses reasonably incurred by such indemnified party in
connection with investigating or defending any Securities Action.
Notwithstanding the provisions of this Section 6, the Initial Purchaser (nor
their related Indemnified Persons) shall not be required to contribute, in the
aggregate, any amount in excess of the amount by which the total discounts and
commissions received by such Initial Purchaser with respect to the Units,
exceeds the amount of any damages which such Initial Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
23
(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.
7. Conditions of Initial Purchaser's Obligations. The obligations of
the Initial Purchaser under this Agreement are subject to the satisfaction of
each of the following conditions:
(a) All of the representations and warranties of Holdings contained
in this Agreement shall be true and correct on the date hereof and on the
Closing Date with the same force and effect as if made on and as of the
date hereof and the Closing Date, respectively. Holdings shall have
performed or complied with all of the agreements herein contained and
required to be performed or complied with by them at or prior to the
Closing Date.
(b) The Offering Memorandum shall have been printed and copies
distributed to the Initial Purchaser not later than 10:00 a.m., New York
City time, on the date of this Agreement or at such later date and time as
to which you may agree.
(c) No stop order suspending the qualification or exemption from
qualification of any of the Securities in any jurisdiction referred to in
Section 4(e) shall have been issued and no proceeding for that purpose
shall have been commenced or shall be pending or threatened.
(d) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency which would, as of the Closing Date, prevent the issuance or sale
of any of the Securities; no action, suit or proceeding shall be pending
against or affecting or, to the knowledge of Holdings, threatened against,
Holdings, Anvil or any of their respective subsidiaries before any court
or arbitrator or any governmental body, agency or official that, if
adversely determined, would have a Material Adverse Effect; and no stop
order preventing the use of the Offering Memorandum, or any amendment or
supplement thereto, or any order asserting that any of the transactions
contemplated by this Agreement are subject to the registration
requirements of the Securities Act shall have been issued.
(e) Since the dates as of which information is given in the Offering
Memorandum, (i) there shall not have been any material change, or any
development that is reasonably likely to result in a material change, in
the capital stock, or material increase in the short-term debt or the
long-term debt, of Holdings, Anvil or any of their subsidiaries from that
set forth in the Offering Memorandum and (ii) no dividend or distribution
of any kind shall have been declared, paid or made by Holdings, Anvil or
any of their subsidiaries on any class of its capital stock. Since the
date hereof and since the dates as of which information is given in the
Offering Memorandum, there shall not have been any Material Adverse
Change.
24
(f) You shall have received certificates, dated the Closing Date,
signed by (i) the President and (ii) any Vice President or a principal
financial or accounting officer of Holdings, as of the Closing Date,
confirming the matters set forth in paragraphs (a), (c) (d) and (e) of
this Section 7.
(g) You shall have received on the Closing Date an opinion
(satisfactory to you and your counsel), dated the Closing Date, of
Kirkland & Ellis, counsel for Holdings and Anvil, to the effect set forth
in Exhibit B hereto.
(h) You shall have received on the Closing Date an opinion
(satisfactory to you and your counsel), dated the Closing Date, of Jacob
Hollander, Vice President, Secretary and General Counsel of Holdings, to
the effect set forth in Exhibit C hereto.
(i) Counsel for Holdings and Anvil shall have delivered to you
copies of all opinions issued by them in connection with the New Credit
Agreement and the transactions contemplated thereby.
(j) You shall have received an opinion, dated the Closing Date, of
Simpson Thacher & Bartlett, your counsel, in form and substance reasonably
satisfactory to you, covering such matters as are customarily covered in
such opinions.
(k) You shall have received a solvency opinion, dated the Closing
Date, of Murray Devine, addressed to the Initial Purchaser and otherwise
in form and substance reasonably satisfactory to you.
(l) At the time this Agreement is executed and delivered by Holdings
and on the Closing Date, you shall have received letters, substantially in
the form previously approved by you, from Deloitte & Touche LLP and KPMG
Peat Marwick LLP, independent public accountants, with respect to the
financial statements and certain financial information contained in the
Offering Memorandum.
(m) Subsequent to the execution and delivery of this Agreement,
there shall not have been any downgrading, nor shall have any notice have
been given of any intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the possible
change, in the rating accorded to any securities of Holdings or Anvil by
any "nationally recognized statistical rating organization," as such term
is defined for the purposes of Rule 436(g)(2) under the Securities Act.
(n) Simpson Thacher & Bartlett shall have been furnished with such
documents and opinions, in addition to those set forth above, as they may
reasonably require for the purpose of enabling them to review or pass upon
the matters referred to in this Section 7 and in order to evidence the
accuracy, completeness or satisfaction in all material respects of any of
the representations, warranties or conditions herein contained.
25
(o) Prior to the Closing Date, Holdings shall have furnished to you
such further information, certificates and documents as you may reasonably
request.
(p) Holdings and the Trustee shall have entered into the Exchange
Debenture Indenture and Holdings and the Unit Agent shall have entered
into the Unit Agreement and you shall have received counterparts,
conformed as executed, thereof.
(q) Holdings, Anvil and the Initial Purchaser shall have entered
into the Registration Rights Agreement and the parties to the
Securityholders Agreement shall have entered into such agreement and you
shall have received counterparts, conformed as executed, thereof.
(r) Prior to the Closing Date, Holdings shall have filed the
Certificate of Designation with the Secretary of State of the State of
Delaware and you shall have received evidence thereof satisfactory to you.
(s) At or prior to the Closing Date, the Recapitalization shall have
been consummated on terms that conform in all material respects to the
Recapitalization Agreement, as amended, (in the form delivered to the
Initial Purchasers prior to the date hereof) and the description thereof
in the Offering Memorandum and you shall have received true and correct
copies of all documents pertaining thereto and evidence satisfactory to
you of the consummation thereof.
(t) At or prior to the Closing Date, the closing under the New
Credit Agreement shall have been consummated on terms that conform in all
material respects to the New Credit Agreement (in the form delivered to
the Initial Purchaser prior to the date hereof) and the description
thereof in the Offering Memorandum and you shall have received evidence
satisfactory to you of the consummation thereof.
(u) At or prior to the Closing Date, the Offering shall have been
consummated on terms that conform in all material respects to the
description thereof contained in the Offering Memorandum and you shall
have received evidence satisfactory to you of the consummation thereof.
(v) Prior to the Closing Date, Holdings, Anvil and their
subsidiaries shall have furnished to you such further information,
certificates and documents as you may reasonable request, including any
such information, certificates and documents required in connection with
the legal opinions to be furnished by your counsel as set forth above.
All opinions, certificates, letters and other documents required by
this Section 7 to be delivered by Holdings and Anvil will be in compliance with
the provisions hereof only if they are reasonably satisfactory in form and
substance to you. Holdings will furnish the Initial Purchaser with such
conformed copies of such opinions, certificates, letters and other documents as
they shall reasonably request.
26
8. Conditions to the Obligations of Holdings. All of the
representations and warranties of the Initial Purchaser contained in this
Agreement shall be true and correct as of the Closing Date with the same force
and effect as if made on and as of the Closing Date.
9. Effective Date of Agreement and Termination. This Agreement shall
become effective upon the execution hereof.
This Agreement may be terminated at any time on or prior to the
Closing Date by you by notice to Anvil if any of the following has occurred: (i)
subsequent to the date information is provided in the Offering Memorandum, any
Material Adverse Change which, in your judgment, materially impairs the
investment quality of any of the Securities, (ii) any outbreak or escalation of
hostilities or other national or international calamity or crisis or material
adverse change in the financial markets of the United States or elsewhere, or
any other substantial national or international calamity or emergency if the
effect of such outbreak, escalation, calamity, crisis, material adverse change
or emergency would, in your judgment, make it impracticable or inadvisable to
market any of the Securities or to enforce contracts for the sale of any of the
Securities, (iii) any suspension or limitation of trading generally in
securities on the New York Stock Exchange or in the Nasdaq National Market
System or any setting of minimum prices for trading on such exchange or markets,
(iv) any declaration of a general banking moratorium by either federal or New
York authorities, (v) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs that in your
judgment has a material adverse effect on the financial markets in the United
States, and would, in your judgment, make it impracticable or inadvisable to
market any of the Securities or to enforce contracts for the sale of any of the
Securities or (vi) the enactment, publication, decree, or other promulgation of
any federal or state statute, regulation, rule or order of any court or other
governmental authority which, in your judgment, would have a Material Adverse
Effect.
The indemnities and contribution provisions and the other
agreements, representations and warranties of Holdings, their respective
officers and directors and of the Initial Purchaser set forth in or made
pursuant to this Agreement shall remain operative and in full force and effect,
and will survive delivery of and payment for the Units regardless, of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
either of the Initial Purchaser or by or on behalf of Holdings, the officers or
directors of Holdings or the controlling person of Holdings, (ii) acceptance of
the Units and payment for them hereunder and (iii) termination of this
Agreement.
If this Agreement shall be terminated by the Initial Purchaser
pursuant to clause (i) of the second paragraph of this Section 9 or because of
the failure or refusal on the part of Holdings or Anvil to comply with the terms
or to fulfill any of the conditions of this Agreement, Anvil agrees to reimburse
you for all out-of-pocket expenses (including the fees and disbursements of
counsel) incurred by you. Notwithstanding any termination of this Agreement,
Anvil shall be liable for all expenses which it has agreed to pay pursuant to
Section 4(f) hereof. If the transactions contemplated hereby are consummated,
each of the parties shall pay its own
27
expenses in connection with the offering and sale of the Units, including the
costs and expenses of its counsel, except as otherwise provided in Section 4(f)
hereof.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon Holdings, the Initial
Purchaser, any Indemnified Person referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The terms "successors and assigns" shall not include a purchaser of
any of the Units from the Initial Purchaser merely because of such purchase.
10. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows:
(i) if to Holdings:
Anvil Holdings, Inc.
228 East 45th Street
New York, New York 10017
Attention: Jacob Hollander
Telecopier: 212-885-9411
with copies to:
399 Venture Partners, Inc.
399 Park Avenue, 14th Floor
New York, New York 10043
Attention: David F. Thomas
Telecopier: 212-888-2940
and
Bruckmann, Rosser, Sherrill & Co., Inc.
126 East 56th Street, 29th Floor
New York, New York 10022
Attention: Stephen F. Edwards
Telecopier: 212-521-3799
and copy to:
Kirkland & Ellis
Citicorp Center
153 East 53rd Street
New York, New York 10022
Attention: Lance C. Balk
Telecopier: 212-446-4900
28
(ii) if to the Initial Purchaser:
Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Attention: Tom McGonagle
Telecopier: 212-892-7509
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: John D. Lobrano
Telecopier: 212-455-2502
(iv) or in any case to such other address as the person to be
notified may have requested in writing.
This Agreement shall be governed and construed in accordance with
the internal laws of the State of New York as applied to contracts made and
performed entirely within the State of New York, without regard to the conflicts
of laws and principles thereof. This Agreement may be signed in various
counterparts which together shall constitute one and the same instrument.
29
Please confirm that the foregoing correctly sets forth the Agreement
between Holdings and the Initial Purchaser.
Very truly yours,
ANVIL HOLDINGS, INC.
By:
--------------------------------------
Name:
Title:
Accepted and agreed to as of
the date first above written:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:
---------------------------------
Name:
Title:
Schedule I
DIRECT AND INDIRECT SUBSIDIARIES
OF ANVIL HOLDINGS, INC.
1. Anvil Knitwear, Inc., a Delaware corporation ("Anvil"). Anvil is
authorized to issue 1,000 shares of common stock, par value $.01 per share
of which all 1,000 shares are issued and outstanding. Holdings is the
record and beneficial owner of all 1,000 shares of the common stock of
Anvil.
2. Anvil (Czech), Inc., a Delaware corporation ("Czech"). Czech is authorized
to issue 1,000 shares of common stock, par value $.01 per share of which
all 1,000 shares are issued and outstanding. Anvil is the record and
beneficial owner of all 1,000 shares of the common stock of Czech.
3. Anvil SRO, a Czech Republic membership association ("SRO"). SRO is a
wholly owned subsidiary of Czech.
4 A.K.H., S.A., a Honduran limited liability company ("Honduras"). Honduras
is authorized to issue 250 membership interests of which 250 are issued
and outstanding. Anvil is the record and beneficial owner of 246
membership interests. The remaining 4 membership interests are held 1 each
by Mario Mejia Cobos, Jesse Ivy Beall Caballero, Jose Angel Mejia, and
Julio Herra Montes.
5. Cottontops, Inc., a Delaware corporation ("Cottontops DE"). Cottontops DE
is authorized to issue 100 shares of common stock, par value $.01 of which
all 100 shares are issued and outstanding. Anvil is the record and
beneficial owner of all 100 shares of the common stock of Cottontops DE.
Exhibit A
[Form of Registration Rights Agreement]
Exhibit B
[Form of Opinion of Kirkland & Ellis]
Exhibit C
[Form of Opinion of the General Counsel]