EXECUTION COPY
ANVIL KNITWEAR, INC.
$130,000,000
10-7/8% Senior Notes due 2007
PURCHASE AGREEMENT
March 11, 1997
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
WASSERSTEIN PERELLA SECURITIES, INC.
NATIONSBANC CAPITAL MARKETS, INC.
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Each of Anvil Knitwear, Inc., a Delaware corporation ("Anvil") and
Anvil Holdings, Inc., a Delaware corporation ("Holdings") (but for Holdings,
only wi h respect to Section 4, 5 and 6 herein) agrees with you as follows:
1. The Note Offering and Related Transactions. Anvil proposes to
offer and sell (the "Offering") to Donaldson, Lufkin & Jenrette Securities
Corporation, Wasserstein Perella Securities, Inc. and NationsBanc Capital
Markets, Inc. (each an "Initial Purchaser" and collectively, the "Initial
Purchasers"), in the respective amounts set forth on Schedule I hereto,
$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 herein) (collectively, the "Senior Notes") will be guaranteed
by Holdings (the "Holdings Guarantees") and by Cottontops, Inc. (the "Cottontops
Guarantees" and, together with the Holdings Guarantee, the "Note Guarantees")
and by any other Subsidiary Guarantors. 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"), among Anvil, Holdings, Cottontops, Inc. ("Cottontops"), the
other Subsidiary Guarantors (as defined therein) and United States Trust Company
of New York, as Trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Senior Indenture unless otherwise indicated.
Concurrently with the Offering, Holdings proposes to offer and sell
30,000 Units (the "Units"), consisting of $30,000,000 aggregate liquidation
preference of 13% Senior Exchangeable Preferred Stock due 2009 (the "Senior
Preferred Stock") of Holdings and 390,000
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shares of Class B Common Stock (the "Class B Common") of Holdings, (the "Units
Offering" and, together with the Offering, the "Offerings"). The Senior
Preferred Stock will be issued pursuant to the terms of the certificate of
designations therefor (the "Certificate of Designation") and will be
exchangeable pursuant to the terms thereof into 13% Subordinated Exchange
Debentures due 2009 (the "Exchange Debentures") of Holdings. Any Exchange
Debentures may 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.
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 (such
guarantee, together with the Holdings Guarantees, being hereafter referred to
herein as the "Guarantees"). 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 4as 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 Series A Senior Notes will be offered and sold to you pursuant
to an exemption from the registration requirements under the Securities Act of
1933, as amended (the "Securities Act"). Anvil 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, Anvil and the Senior Notes.
Upon original issuance thereof, and until such time as the same is
no longer required under the applicable requirements of the Securities Act, the
Series A Senior Notes (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
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REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF
THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON 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 ANVIL 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 ANVIL SO
REQUESTS), (b) TO ANVIL, (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 Anvil that you will make offers (the "Exempt
Resales") of the Series A Senior Notes purchased 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 Series A Senior Notes to such QIBs and Accredited Investors
initially at a price equal to 100% of the principal amount thereof. Such price
may be changed by you at any time without notice.
Holders (including subsequent transferees) of the Series A Senior
Notes will have the registration rights set forth in the registration rights
agreement relating thereto (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 Notes constitute "Transfer Restricted
Securities" (as defined in the Registration Rights Agreement). Pursuant to the
Registration Rights Agreement, Holdings, Anvil and Cottontops will agree to file
with the Securities and Exchange Commission (the "Commission"), under the
circumstances set forth
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therein, (i) a registration statement under the Securities Act (the "Exchange
Offer Registration Statement") relating to the 10-7/8% Series B Senior Notes due
2007 of Anvil (the "Series B Senior Notes") (and the related guarantee by
Holdings and Cottontops of Anvil's obligations under the Series B Senior Notes)
to be offered in exchange for the Series A Senior Notes (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 Series A Senior Notes, and to use their best efforts to
cause such Registration Statements to be declared effective. This Purchase
Agreement (this "Agreement"), the Senior Notes, the Note Guarantees, the Senior
Indenture, the Registration Rights 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."
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, Anvil agrees to issue and sell to each of you, and each of
you, severally but not jointly, agrees to purchase from Anvil, $130,000,000
aggregate principal amount of Series A Senior Notes in the respective principal
amount set forth opposite your name on Schedule I hereto. The purchase price for
the Series A Senior Notes shall be 97% of their principal amount.
3. Delivery and Payment. Delivery to the Initial Purchasers of, and
payment for, the Senior Notes shall be made at 10:00 a.m., New York City time,
on March 14, 1997 (the "Closing Date") at the offices of Simpson Thacher &
Bartlett, 425 Lexington Avenue, New York, New York 10017, or such other time or
place as you and Anvil shall designate.
One or more of the Series A Senior Notes 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 Purchasers may request upon at least
two business days' notice to Anvil prior to the Closing Date, having an
aggregate principal amount designated by you (each, a "Global Note"), and one or
more of the Series A Senior Notes in definitive form, registered in such names
and denominations as you may request (each, a "Certificated Note"), shall be
delivered by Anvil 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
Anvil. The Global Note(s) and the Certificated Note(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 Anvil and Holdings. Anvil and Holdings agree with
each of you as follows:
(a) Before completion of the distribution of the Series A Senior
Notes 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 Series A Senior Notes for offering or
sale in any jurisdiction, or the initiation of any proceeding for such
purpose
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by any state securities commission or other regulatory authority, and (ii)
before the earlier to occur of the Exchange Offer and the effective date
of the Shelf Registration Statement, 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 Anvil or Holdings (copies of which shall be delivered to you
within one business day after issuance). Anvil shall use its best efforts
to prevent the issuance of any stop order or order suspending the
qualification or exemption of any of the Series A Senior Notes 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 Series A Senior Notes under
any state securities or Blue Sky laws, Anvil shall use their 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. Anvil
and Holdings consent (on behalf of themselves and their subsidiaries) 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; provided, however, that the Initial
Purchasers shall discontinue using such Preliminary Offering Memorandum or
Offering Memorandum if advised by Anvil or Holdings that the Preliminary
Offering Memorandum or Offering Memorandum are to be amended or
supplemented until such document is so amended or supplemented.
(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.
Anvil and 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.
(d) If, after the date hereof and prior to consummation of any
Exempt Resales, any event shall occur as a result of which, in the
judgment of Anvil 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
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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 Senior Notes 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; provided, however that neither Anvil nor Holdings shall 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, in any
jurisdiction where it is not now so subject. Anvil and Holdings will
continue such qualification in effect so long as required by law for
distribution of the Series A Senior Notes.
(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 Anvil of the Senior Notes and Holdings and
Cottontops of the Note Guarantees, (iv) the qualification of the Senior
Notes for offer and sale under the securities or Blue Sky 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 Senior Notes (including, without limitation, printing and
engraving thereof), (vii) the fees, disbursements and expenses of Anvil's
and Holdings' counsel and accountants, (viii) the fees and expenses of the
Trustee and its counsel under the Senior Indenture, (ix) all expenses and
listing fees in connection with the application for designation of the
Series A Senior Notes 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 Anvil in connection with the approval of the
Senior Notes by DTC for "book-entry" transfer, (xi) any fees charged by
rating agencies for rating the Senior Notes, (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 Anvil and
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Holdings and (xiii) the performance by each of Anvil and Holdings of its
other obligations under this Agreement and the other Operative Documents.
(g) To use the proceeds from the sale of the Series A Senior Notes
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 Senior
Notes.
(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
Series A Senior Notes 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 Securi
ties Act) that would be integrated with the sale of the Series A Senior
Notes in a manner that would require the registration under the Securities
Act of the sale to you or Eligible Purchasers of the Series A Senior
Notes.
(k) For so long as any of the Senior Notes remain outstanding and
during any period in which Anvil, Holdings and the Subsidiary Guarantors
are 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 Senior Notes in connection with any sale thereof
and any prospective purchaser of such Senior Notes 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 Notes to be offered in
exchange for the Series A Senior Notes and to comply with all applicable
federal and state securities laws in connection with the Exchange Offer.
(m) To use their best efforts to effect the inclusion of the Series
A Senior Notes in PORTAL.
(n) During a period of five years following the date of this
Agreement, to deliver to each of you promptly upon their becoming
available, copies of all current, regular and periodic reports filed by
Anvil or Holdings 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 Anvil and
Holdings as the Initial Purchasers 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 Anvil or Holdings
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(other than (i) the Series A Senior Notes, (ii) the Series B Senior Notes
issuable in the Exchange Offer, (iii) the Units, the Senior Preferred
Stock and the Class B Common comprising the Units in connection with the
Units Offering, (iv) New Senior Preferred Stock (as defined in the
Offering Memorandum) and (v) the Exchange Debentures issuable pursuant to
the terms of the Senior Preferred Stock or the New 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 Notes to
be offered in exchange for the Series A Senior Notes as contemplated
thereby and/or the shelf registration of the Series A Senior Notes.
(q) To comply with all agreements set forth in the representation
letter of Anvil to DTC relating to the approval of the Senior Notes 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 Senior Notes that may be acquired by any of them.
5. Representations and Warranties. (a) Each of Anvil and Holdings
represents and warrants, jointly and severally, to each of 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 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 Anvil 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 Series A Senior Notes and Note Guarantees are issued
and delivered pursuant to this Agreement, none of the Series A Senior
Notes or the Note Guarantees will be of the same class (within the meaning
of Rule 144A under the Securities Act) as securities of Anvil or Holdings
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.
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(iii) Each of Anvil, Holdings 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 Anvil,
Holdings 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 Anvil, Holdings 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 II hereto are the only
subsidiaries, direct or indirect, of Holdings. Holdings owns, directly or
indirectly through other subsidiaries, the percentage listed in Schedule
II 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 Anvil and
Holdings 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 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 Anvil or Holdings.
(vi) Each of Anvil, Holdings and Cottontops 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 Anvil, the corporate power and
authority to issue, sell and deliver the Senior Notes as provided herein
and therein.
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(vii) Holdings has all the requisite corporate power and authority
to execute, deliver and perform its obligations under the Guarantees and
to consummate the transactions contemplated thereby.
(viii) This Agreement has been duly and validly authorized, executed
and delivered by each of Anvil and Holdings and (assuming the due
execution and delivery thereof by you) is the legally valid and binding
agreement of each of Anvil and Holdings, enforceable against each of Anvil
and 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).
(ix) Each of the Guarantees has been duly and validly authorized
and, when duly executed and delivered by Holdings and endorsed upon a duly
issued and authenticated Senior Note in accordance with the terms of the
Senior Indenture, 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
Senior Indenture. The Guarantees, when executed and delivered, will
conform to the description thereof in the Offering Memorandum.
(x) The Cottontops Guarantees has been duly and validly authorized
and, when duly executed and delivered by Cottontops and endorsed upon a
duly issued and authenticated Senior Note in accordance with the terms of
the Senior Indenture, will be the legally valid and binding obligations of
Cottontops, enforceable against Cottontops 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
Senior Indenture. The Cottontops Guarantees, when executed and delivered,
will conform to the description thereof in the Offering Memorandum.
(xi) The Senior Indenture has been duly and validly authorized by
each of Anvil, Holdings and Cottontops and, when duly executed and
delivered by each of Anvil, Holdings and Cottontops (assuming the due
execution and delivery thereof by the Trustee), will be the legally valid
and binding obligation of Anvil, Holdings and Cottontops, enforceable
against each of Anvil, Holdings and Cottontops 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 Senior Indenture, when executed
and delivered, will conform to the description thereof in the Offering
Memorandum. The Senior Indenture conforms to the requirements of the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
(xii) The Registration Rights Agreement has been duly and validly
authorized by each of Anvil, Holdings and Cottontops and, when duly
executed and delivered by
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each of Anvil, Holdings and Cottontops (assuming the due execution and
delivery thereof by you), will be the legally valid and binding obligation
of each of Anvil, Holdings and Cottontops, enforceable against each of
Anvil, Holdings and Cottontops 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 Registration Rights Agreement, when executed and
delivered, will conform to the description thereof in the Offering
Memorandum.
(xiii) The Series A Senior Notes have been duly and validly
authorized for issuance and sale to you by Anvil pursuant to this
Agreement and, when issued and authenticated in accordance with the terms
of the Senior Indenture and delivered against payment therefor in
accordance with the terms hereof, will be the legally valid and binding
obligations of Anvil, enforceable against Anvil 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
Senior Indenture. The Series A Senior Notes when issued, authenticated and
delivered, will conform to the description thereof in the Offering
Memorandum.
(xiv) The Series B Notes have been duly and validly authorized for
issuance by Anvil, and when issued and authenticated in accordance with
the terms of the Senior Indenture and the Registration Rights Agreement,
will be the legally valid and binding obligations of Anvil, enforceable
against Anvil 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 Senior Indenture. The
Series B Notes, when issued authenticated and delivered, will conform to
the description thereof in the Offering Memorandum.
(xv) None of Anvil or Holdings 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 Anvil or Holdings, any
of their subsidiaries or their assets or properties that in the case of
clauses (A), (B) and (C) above, (x) 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 Anvil or Holdings and
their subsidiaries, taken as a whole, (y) would materially interfere with
or adversely affect the issuance of the Senior Notes and the Note
Guarantees or (z) in any manner draw into question the validity of this
Agreement or any other Operative Document or the Guarantees (any of the
events set forth in clauses (x), (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.
11
(xvi) The execution, delivery and performance by each of Anvil,
Holdings and Cottontops of this Agreement and/or the other Operative
Documents to which it is a party, the issuance and sale of the Senior
Notes, the execution, delivery and performance of the Note Guarantees, 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 Anvil or Holdings or any of their subsidiaries, or an
acceleration of indebtedness pursuant to, (i) the charter or bylaws of
Anvil or Holdings or any of their subsidiaries, (ii) any bond, debenture,
note, indenture, mortgage, deed of trust or other agreement or instrument
to which Anvil or Holdings 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 Anvil or Holdings, 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 Anvil or Holdings, 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 Senior
Notes, the execution, delivery and performance of the Note Guarantees, the
consummation of the transactions contemplated 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.
(xvii) 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 Senior Notes, the
execution, delivery and performance of the Note Guarantees 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.
(xviii) 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 Anvil, Holdings and
their subsidiaries, threatened or contemplated to which Anvil, Holdings 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 Anvil, Holdings or any
of their subsidiaries is or may be subject, (ii) no statute, rule,
regulation or order that has
12
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 Anvil, Holdings or any of their
subsidiaries is or may be subject or to which the business, assets or
property of Anvil, Holdings 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.
(xix) 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 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.
(xx) 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,
13
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.
(xxi) 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 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.
(xxii) 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.
14
The use of the Intellectual Property in connection with the business and
operations of Anvil 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.
(xxiii) 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 Anvil or any of its subsidiaries.
(xxiv) 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.
(xxv) There are no holders of securities of Holdings, Anvil or any
of their subsidiaries who, by reason of the execution by Anvil and
Holdings 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 Anvil or Holdings
register under the Securities Act or analogous foreign laws and
regulations securities held by them.
(xxvi) Each certificate signed by any officer of Anvil or Holdings
and delivered to the Initial Purchasers or counsel for the Initial
Purchasers shall be deemed to be a representation and warranty by Anvil
and Holdings to each Initial Purchaser as to the matters covered thereby.
(xxvii) 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.
15
(xxviii) 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
Anvil 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.
(xxix) 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 Anvil or Holdings to facilitate the sale or
resale of the Senior Notes or (ii) since the date of the Preliminary
Offering Memorandum (A) sold, bid for, purchased or paid any person any
compensation for soliciting purchases of, the Senior Notes or (B) paid or
agreed to pay to any person any compensation for soliciting another to
purchase any other securities of Anvil or Holdings.
(xxx) No registration under the Securities Act of the Series A
Senior Notes is required for the sale of the Series A Senior Notes to the
Initial Purchasers as contemplated hereby or for the Exempt Resales
assuming (i) that the purchasers who buy the Series A Senior Notes in the
Exempt Resales are either QIBs or Accredited Investors and (ii) the
accuracy of the Initial Purchasers' 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 Series A Senior Notes or in connection with
Exempt Resales, 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 Series A
Senior Notes have been issued and sold by Anvil or Holdings within the
six-month period immediately prior to the date hereof. Neither Anvil nor
Holdings have entered into any contractual arrangement with respect to the
distribution of the Series A Senior Notes except for this Agreement.
(xxxi) The execution and delivery of this Agreement, the other
Operative Documents and the sale of the Series A Senior Notes 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 Anvil and
Holdings 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."
16
(xxxii) 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.
(xxxiii) 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.
(xxxiv) None of Anvil or Holdings or, to the best of their
knowledge, any agent thereof acting on behalf of Anvil or Holdings has
taken, and none of them will take, any action that would reasonably expect
to cause this Agreement or the issuance or sale of the Senior Notes 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.
(xxxv) 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 and the Guarantees. 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.
(xxxvi) 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
17
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.
(xxxvii) There are no contracts, agreements or understandings
between Anvil or Holdings or any of their subsidiaries and any person that
would give rise to a valid claim against Anvil or Holdings, its
subsidiaries or any Initial Purchaser for a brokerage commission, finder's
fee or like payment in connection with the issuance, purchase and sale of
the Senior Notes.
(xxxviii) Prior to the Exchange Offer or the effectiveness of the
Shelf Registration Statement, the Senior Indenture is not required to be
qualified under the Trust Indenture Securities Act.
(xxxix) Holdings and Anvil have delivered to the Initial Purchasers
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 and Anvil acknowledge that the Initial Purchasers and, for
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Section 7 hereof, counsel to Holdings and Anvil and counsel to the Initial
Purchasers, will rely upon the accuracy and truth of the foregoing
representations and hereby consent to such reliance.
(b) Each Initial Purchaser represents and warrants to Anvil,
Holdings and to the other Initial Purchasers and, agrees that:
(i) Such 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 Senior Notes and
acknowledges that neither the Series A Senior
18
Notes nor Notes Guarantees have 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) Such Initial Purchaser (A) is not acquiring the Series A Senior
Notes 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 Series A Senior Notes 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) No form of general solicitation or general advertising has
been or will be used by such Initial Purchaser or any of its
representatives in connection with the offer and sale of any of the Series
A Senior Notes, 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.
(iv) Such Initial Purchaser agrees that, in connection with the
Exempt Resales, it will solicit offers to buy the Series A Senior Notes
only from, and will offer to sell the Series A Senior Notes only to, QIBs
and Accredited Investors. Such Initial Purchaser further agrees (A) that
it will offer to sell the Series A Senior Notes only to, and will solicit
offers to buy the Series A Senior Notes only from (l) QIBs who in
purchasing such Series A Senior Notes will be deemed to have represented
and agreed that they are purchasing the Series A Senior Notes for their
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
Series A Senior Notes 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 Anvil 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.
19
(v) Such 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.
(vi) Such Initial Purchaser (A) has not solicited, and will not
solicit, offers to purchase any of the Series A Senior Notes from, (B) it
has not sold, and will not sell, any of the Series A Senior Notes 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.
(vii) Such Initial Purchaser also understands that Anvil and
Holdings and, for purposes of the opinions to be delivered to you pursuant
to Section 7 hereof, counsel to Anvil and Holdings and counsel to the
Initial Purchasers, will rely upon the accuracy and truth of the foregoing
representations and hereby consents to such reliance.
6. Indemnification.
(a) Anvil and Holdings, jointly and severally, agree to indemnify
and hold harmless each of the Initial Purchasers and each person, if any, who
controls (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) any of the Initial Purchasers (any of such persons
hereinafter referred to as a "controlling person"), and the respective officers,
directors, partners, employees, representatives and agents of any of the Initial
Purchasers 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 Anvil and Holdings by such 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 such Initial Purchaser to
the person asserting any such loss, claim, damage, liability or expense at or
prior to the written
20
confirmation of the sale of the Series A Senior Notes and the Offering
Memorandum (as then amended or supplemented) would have corrected each untrue
statement or omission. Anvil and 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 either Anvil
or Holdings reimburse an Initial Purchaser hereunder for any Expenses, such
Initial Purchaser hereby agrees to refund such reimbursement of Expenses to the
extent that the Initial Purchasers are not entitled to be indemnified hereunder.
Anvil and Holdings shall notify each Initial Purchaser promptly of the
institution, threat or assertion of any Securities Action in connection with the
matters addressed by this Agreement which involves Anvil, 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 Anvil
and Holdings in writing, provided that the failure to so notify Anvil and
Holdings shall not relieve Anvil or Holdings from any liability which Anvil or
Holdings may have on account of this indemnity or otherwise, except to the
extent Anvil and Holdings shall have been materially prejudiced by such failure.
Anvil and 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) Anvil and Holdings have 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 and Anvil or
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 Anvil or Holdings, provided that Anvil and
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.
Neither Anvil nor Holdings shall be liable for any settlement of any Securities
Action effected without written consent of Anvil and Holdings (which shall not
be unreasonably withheld) and Anvil and Holdings agree 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 Anvil. Notwithstanding the immediately preceding sentence, if at any
time an Indemnified Person shall have requested Anvil or Holdings to reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by the
third sentence of this paragraph, each of Anvil and 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 Anvil and Holdings of the aforesaid request and
(ii) Anvil and Holdings shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. In addition,
Anvil and 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
21
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) Each of the Initial Purchasers agrees, severally and not
jointly, to indemnify and hold harmless each of Anvil and 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) Anvil and Holdings, and
the officers, directors, partners, employees, representatives and agents of each
such person, to the same extent as the foregoing indemnity from Anvil and
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 such Initial
Purchaser furnished in writing by or on behalf of such Initial Purchaser to
Anvil and 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 Anvil, 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 Anvil and Holdings, and Anvil, Holdings or their directors or
officers or such controlling person shall have the rights and duties given to
each Initial Purchaser by the preceding paragraph. In no event shall the
liability of any Initial Purchaser hereunder be greater, in the aggregate, than
the amount by which the total discounts and commissions received by such Initial
Purchaser with respect to the Series A Senior Notes exceeds the amount of any
damages which such Initial Purchaser has otherwise been required to pay by
reason of a claim or action based on such information.
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 Anvil and Holdings in writing by any
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 Series A Senior Notes 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
22
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 Anvil and Holdings
on the one hand and the Initial Purchasers on the other hand, shall be in the
same proportion as the total proceeds from the sale of the Series A Senior Notes
(net of discounts and commissions but before deducting expenses) received by
Anvil and Holdings on the one hand and the total discounts and commissions
received by the Initial Purchasers on the other hand, bear to the total price of
the Series A Senior Notes, 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.
Anvil, Holdings and the Initial Purchasers 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 Purchasers 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, none of the Initial
Purchasers (nor their related Indemnified Persons) shall 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 Series A Senior Notes, 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 (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Initial Purchasers' obligations
to contribute pursuant to this Section 6(d) are several in proportion to the
respective number of Series A Senior Notes purchased by each of the Initial
Purchasers hereunder and not joint.
7. Conditions of Initial Purchasers' Obligations. The several
obligations of the Initial Purchasers under this Agreement are subject to the
satisfaction of each of the following conditions:
(a) All of the representations and warranties of Anvil and 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. Anvil and
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.
23
(b) The Offering Memorandum shall have been printed and copies
distributed to the Initial Purchasers 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 Series A Senior Notes 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 Series A Senior Notes; no action, suit or proceeding shall
be pending against or affecting or, to the knowledge of Anvil, threatened
against, Anvil, Holdings 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.
(f) You shall have received certificates, dated the Closing Date,
signed by (i) the Chief Executive Officer and (ii) any Vice President or a
principal financial or accounting officer of Anvil, 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 Anvil and Holdings, 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, Executive Vice President, Chief Administrative Officer,
Secretary and General Counsel of Anvil, to the effect set forth in Exhibit
C hereto.
24
(i) Counsel for Anvil and Holdings 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 Purchasers and otherwise
in form and substance reasonably satisfactory to you.
(l) At the time this Agreement is executed and delivered by Anvil
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.
(o) Prior to the Closing Date, Holdings and Anvil shall have
furnished to you such further information, certificates and documents as
you may reasonably request.
(p) Anvil, Holdings, Cottontops and the Trustee shall have entered
into the Senior Indenture and you shall have received counterparts,
conformed as executed, thereof.
(q) Anvil, Holdings, Cottontops and the Initial Purchasers shall
have entered into the Registration Rights Agreement and you shall have
received counterparts, conformed as executed, thereof.
(r) 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
25
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.
(s) 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 Purchasers 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.
(t) At or prior to the Closing Date, the Units 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.
(u) 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 and Anvil will furnish the Initial Purchasers with
such conformed copies of such opinions, certificates, letters and other
documents as they shall reasonably request.
8. Conditions to the Obligations of Anvil and Holdings. All of the
representations and warranties of the Initial Purchasers 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. Defaults. If, on the Closing Date, any of the Initial Purchasers
shall fail or refuse to purchase the Series A Senior Notes that it has agreed to
purchase hereunder on such date, and the aggregate principal amount of such
Series A Senior Notes that such defaulting Initial Purchaser agreed but failed
or refused to purchase does not exceed 10% of the total principal amount of such
Series A Senior Notes that all of the Initial Purchasers are obligated to
purchase on such Closing Date, the non-defaulting Initial Purchasers shall be
obligated to purchase the amount of such Series A Senior Notes that such
defaulting Initial Purchaser agreed but failed or refused to purchase. If, on
the Closing Date, any of the Initial Purchasers shall fail or refuse to purchase
the Series A Senior Notes in an aggregate principal amount that exceeds 10% of
such total principal amount and arrangements satisfactory to the other Initial
Purchasers and Anvil for the purchase of such Series A Senior Notes are not made
within 48 hours after such default, this Agreement shall terminate without
liability on the part of the non-defaulting Initial Purchasers or Anvil, except
as otherwise provided in Section 10. In any such case that does not result in
termination of this Agreement, the Initial Purchasers or Anvil may postpone
26
the Closing Date for not longer than seven (7) days, in order that the required
changes, if any, in the Offering Memorandum or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve a defaulting Initial Purchaser from liability in respect of any default
by any such Initial Purchaser under this Agreement.
10. 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 Senior Notes, (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 Series A Senior Notes or to enforce contracts for the sale of
any of the Series A Senior Notes, (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 Series A Senior Notes or to enforce contracts for the sale
of any of the Series A Senior Notes 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 Anvil, Holdings, their respective
officers and directors and of the Initial Purchasers 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 Series A Senior Notes
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
Anvil and Holdings, the officers or directors of Anvil and Holdings or the
controlling person of Anvil and Holdings, (ii) acceptance of the Series A Senior
Notes and payment for them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Initial Purchasers
pursuant to clause (i) of the second paragraph of this Section 10 or because of
the failure or refusal on the part of Anvil or Holdings 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.
27
If the transactions contemplated hereby are consummated, each of the parties
shall pay its own expenses in connection with the offering and sale of the
Series A Senior Notes, 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 Anvil, Holdings, the Initial
Purchasers, 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 Series A Senior Notes from any of the Initial Purchasers merely
because of such purchase.
11. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows:
(i) if to Anvil or Holdings:
Anvil Knitwear, 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
28
Attention: Lance C. Balk
Telecopier: 212-446-4900
(ii) if to the Initial Purchasers:
c/o 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
among Anvil, Holdings and the Initial Purchasers.
Very truly yours,
ANVIL KNITWEAR, INC.
By:-------------------------------------
Name:
Title:
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:
WASSERSTEIN PERELLA
SECURITIES, INC.
By: --------------------------
Name:
Title:
NATIONSBANC CAPITAL
MARKETS, INC.
By: --------------------------
Name:
Title:
SCHEDULE I
Principal Amount
----------------
Donaldson, Lufkin & Jenrette
Securities Corporation..................................... $ 78,000,000
Wasserstein Perella Securities, Inc.......................... 32,500,000
NationsBanc Capital Markets, Inc. .......................... 19,500,000
============
Total............................................... $130,000,000
------------
SCHEDULE II
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]