SYRATECH CORPORATION
___% SENIOR NOTES DUE 2007
UNDERWRITING AGREEMENT
_____________ __, 1997
NationsBanc Capital Markets, Inc.
Chase Securities Inc.
c/o NationsBanc Capital Markets, Inc.
NationsBank Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Dear Sirs:
SECTION 1. Introductory. Syratech Corporation, a Delaware corporation
("Syratech"), proposes to issue and sell to the several Underwriters named in
Schedule I hereto (the "Underwriters"), $160.0 million principal amount of its
___% Senior Notes due 2007 (the "Senior Notes"). The Senior Notes are to be
issued pursuant to the provisions of an indenture dated as of ______________,
1997 (the "Indenture") among the Company (as defined below), as issuer, each of
the Company's subsidiaries set forth in Schedule II hereto (collectively, the
"Guarantors") and __________________, as Trustee (the "Trustee"). The Senior
Notes will be unconditionally guaranteed (the "Subsidiary Guarantees"), on a
joint and several basis, by each of the Guarantors. The Senior Notes and the
Subsidiary Guarantees are herein collectively referred to as the "Securities."
The Securities are being issued and sold in connection with the
recapitalization (the "Recapitalization") of Syratech, pursuant to a merger
agreement, dated October 23, 1996, as amended through the date hereof (the
"Merger Agreement") between Syratech and THL Transaction I Corp., a Delaware
corporation which was formed by its parent, Thomas H. Lee Company ("THL"), for
the purpose of supporting the Recapitalization ("THLT"). The Merger Agreement
provides for the merger (the "Merger") of Syratech with THLT, with Syratech
surviving such Merger (as such survivor, the "Company"). In order to finance the
Recapitalization, in addition to the sale of the Securities hereunder, the
Company will require additional financing of up to $227.5 million. Of such
amount, (i) not less than $125 million would be provided through the issuance
and sale of common stock of the Company, including the
retention of common stock of the Company with an aggregate value of not less
than $23 million by management of Syratech in the Merger, and not less than
$72.5 million in cash to be provided by THL (less amounts invested in common
stock of the Company by the Lenders and their affiliates) (the "Equity
Financing"), and (ii) the remainder would be provided through borrowings under a
$130.0 million asset-based revolving loan facility made available to the Company
(the "New Credit Facility").
The Merger Agreement and the documents entered into in connection
therewith including, without limitation, the agreements attached thereto as
exhibits, are herein collectively referred to as the "Merger Documents." This
Agreement, the Senior Notes, the Indenture and the Subsidiary Guarantees are
herein collectively referred to as the "Offering Documents." The Offering
Documents, the New Credit Facility, the Merger Documents and the documents
pursuant to which the Equity Financing will be consummated are herein
collectively referred to as the "Transaction Documents." The time of the
consummation of the Recapitalization is referred to herein as the "Effective
Time."
Syratech, each of the Guarantors and THLT hereby agree, jointly and
severally, with the several Underwriters as follows:
SECTION 2. Representations, Warranties and Agreements of Syratech and
the Guarantors. Each of Syratech and each Guarantor, jointly and severally,
represents and warrants to, and agrees with, the several Underwriters that:
(a) It has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a registration statement
on Form S-3 (No. 333-18133) (the "registration statement"), including a
preliminary prospectus subject to completion, relating to the Securities.
The registration statement, as amended at the time it becomes effective or,
if a post-effective amendment is filed with respect thereto, as amended by
such post-effective amendment at the time of its effectiveness, including
in each case financial statements and exhibits, all material incorporated
by reference therein, and the information (if any) contained in a
prospectus subsequently filed with the Commission pursuant to Rule 424(b)
under the Act and deemed to be a part of the registration statement at the
time of its effectiveness pursuant to Rule 430A under the Act, is
hereinafter referred to as the "Registration Statement;" and the prospectus
in the form first used to confirm sales of the Securities, whether or not
filed with the Commission pursuant to Rule 424(b) under the Act, including
all material incorporated by reference in such prospectus, is hereinafter
referred to as the "Prospectus." Any reference in this Agreement to the
registration statement, the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of the registration statement, the
Registration Statement, such preliminary prospectus or the Prospectus, as
the case may
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be, and any reference to any amendment or supplement to the registration
statement, the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include any documents filed
after such date under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") which, upon such filing, are incorporated by reference
therein, as required by paragraph (b) of Item 12 of Form S-3. As used
herein, the term "Incorporated Documents" means the documents which are
incorporated by reference in the registration statement, the Registration
Statement, any preliminary prospectus, the Prospectus, or any amendment or
supplement thereto.
(b) Syratech, the Guarantors and the transactions contemplated by this
Agreement meet the requirements for using Form S-3 under the Act. The
Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus. When any Preliminary Prospectus was filed with the
Commission it (x) complied in all material respects with the requirements
of the Act and (y) did not include 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. When the Registration Statement becomes effective and
at all times subsequent thereto up to the Closing Date (as defined herein),
the Registration Statement, the Prospectus and any amendments or
supplements thereto, will conform in all material respects with the
requirements of the Act and the rules and regulations (the "Rules and
Regulations") of the Commission thereunder, and at such effective time the
Registration Statement will not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and the
Prospectus, as amended or supplemented at the Closing Date, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements contained therein, in the
light of the circumstances under which they were made, not misleading;
except that the foregoing does not apply to (i) that part of the
Registration Statement that constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of 1939, as amended
(together with the rules and regulations thereunder, the "1939 Act"), of
the Trustee, and (ii) statements or omissions in the Registration Statement
or the Prospectus, as amended or supplemented if applicable, based upon
written information furnished to Syratech by any Underwriter specifically
for use therein. When the Registration Statement becomes effective,
including at the date of any post-effective amendment, at the date of the
Prospectus and any amendment or supplement thereto (if different) and at
the Closing Date, the Indenture will have been qualified under and will
conform in all material respects to the requirements of the 1939 Act.
(c) The Incorporated Documents heretofore filed, when they were filed
(or, if any amendment with respect to any such document was filed, when
such amendment was filed), conformed in all material respects with the
requirements of the Exchange Act and the rules and regulations thereunder;
any further Incorporated Documents so filed will, when they are filed,
conform in all material respects with the requirement of the Exchange
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Act and the rules and regulations thereunder; no such document when it was
filed (or, if an amendment with respect to any such document was filed,
when such amendment was filed), contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and no
such further document, when it is filed, will contain an untrue statement
of a material fact or will omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading.
(d) Since the respective dates of the most recent financial statements
appearing in the Registration Statement and the Prospectus, except as
otherwise stated therein, (i) neither Syratech nor any of its subsidiaries
has and, at and as of the Effective Time, neither the Company nor any of
its subsidiaries will have incurred any liabilities or obligations, direct
or contingent, or entered into or agreed to enter into any transactions or
contracts (written or oral) not in the ordinary course of business which
liabilities, obligations, transactions or contracts would, individually or
in the aggregate, be material to the condition, financial or otherwise,
earnings, affairs or business prospects of Syratech and its subsidiaries,
taken as a whole, (or, at and as of the Effective Time, the Company and its
subsidiaries, considered as a whole), (ii) neither Syratech nor any of its
subsidiaries has (and, at and as of the Effective Time, neither the Company
nor any of its subsidiaries) will have purchased any of their respective
outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on their respective capital stock
(other than with respect to any of such subsidiaries, the purchase of, or
dividend or distribution on, capital stock owned by Syratech or the
Company, respectively), except as otherwise set forth in the Registration
Statement and the Prospectus and (iii) there shall not have been any change
in the capital stock or long-term indebtedness of Syratech (or, at and as
of the Effective Time, the Company) or any of their respective subsidiaries
except for those changes in capital stock and long-term indebtedness
contemplated by the Transaction Documents.
(e) Syratech has been and, at and as of the Effective Time, the
Company will have been, duly incorporated, and Syratech is and, at and as
of the Effective Time, the Company will be, validity existing as a
corporation in good standing under the laws of Delaware with corporate
power and authority to own, lease and operate its properties and conduct
its businesses as described in the Registration Statement; Syratech is and,
at and as of the Effective Time, the Company will be, duly qualified as a
foreign corporation to transact business, and Syratech is, and at and as of
the Effective Time, the Company will be, in good standing in each
jurisdiction in which either owns or leases properties or in which the
conduct of its respective business requires such qualification, except to
the extent that the failure to be so qualified or be in good standing would
not (i) have a material adverse effect on the assets, business, condition
(financial or otherwise), results of operations or prospects of Syratech
and its subsidiaries, taken as a whole or, at and as of the Effective Time,
the Company and its subsidiaries, taken as a whole or (ii) materially and
adversely affect the offering of the Securities or any of the other
transactions
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contemplated by the Transaction Documents (any such event, a "Material
Adverse Effect").
(f) Each of the subsidiaries of Syratech has been and, at and as of
the Effective Time, each subsidiary of the Company will have been, duly
incorporated and each such subsidiary is, and after giving effect to the
consummation of the transaction contemplated by the Transaction Documents
will be, validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, with all corporate power and
authority to own, lease and operate its properties and conduct its business
as described in the Registration Statement, and each such subsidiary is,
and after giving effect to the consummation of the transaction contemplated
by the Transaction Documents, will be, duly qualified to do business as a
foreign corporation in good standing in each jurisdiction in which it owns
or leases properties or in which the conduct of its business requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a Material Adverse Effect; all of the
issued and outstanding capital stock of each subsidiary of Syratech is, and
at and as of the Effective Time all of the issued and outstanding capital
stock of each subsidiary of the Company will be, duly authorized, validly
issued and fully paid and nonassessable, and all such capital stock of each
such subsidiary is owned by Syratech (and will be owned by the Company
following the consummation of the Recapitalization), directly or through
subsidiaries, free and clear of any mortgage, pledge, lien, encumbrance,
claim or equity. Other than the Guarantors, Syratech has and at and as of
the Effective Time, the Company will have, no subsidiaries incorporated or
otherwise organized in the United States of America or any state thereof.
(g) Syratech has and, at and as of the Effective Time, the Company
will have the authorized, issued and outstanding capitalization set forth
in the Prospectus; all of the outstanding shares of capital stock of
Syratech are and, at and as of the Effective Time, of the Company will be
duly authorized and validly issued, fully paid and nonassessable and not
issued in violation of any preemptive or similar rights.
(h) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens related to or
entitling any person to purchase or otherwise to acquire any shares of
capital stock of, or other ownership interest in, Syratech or any
subsidiary thereof except as otherwise disclosed in the Registration
Statement. At and as of the Effective Date, there will be no outstanding
subscriptions, rights, warrants options, calls, convertible securities,
commitments of sale or liens related to or entitling any person to purchase
or otherwise to acquire any shares of capital stock of, or other ownership
interest in, the Company or any subsidiary thereof except as otherwise
disclosed in the Registration Statement.
(i) Neither Syratech nor any of its subsidiaries is or, at and as of
the Effective Time, neither the Company nor any of its subsidiaries will be
(i) in violation of its charter documents, (ii) in breach or violation of
any law, administrative regulation or
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administrative or court decree or (iii) in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any material contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which it is a party or by which its respective
properties may be bound.
(j) No consent, approval, authorization or order of any court or
governmental authority or agency, or third party is required for the
performance of any of the Transaction Documents by Syratech or any of its
subsidiaries or, at and as of the Effective Time, the Company or any of its
subsidiaries (to the extent each is a party thereto) or the consummation by
Syratech and any of its subsidiaries or, at and as of the Effective Time,
the Company or any of its subsidiaries of the transactions contemplated by
the Transaction Documents, except such as may be required under state
securities or Blue Sky laws. The execution, delivery and performance by
Syratech and each of its subsidiaries and, at and as of the Effective Time,
the Company and each of its subsidiaries, to the extent each is a party
thereto, of the Transaction Documents and the consummation of the
transactions contemplated thereby will not conflict with or constitute a
breach of, or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of Syratech or any
of its subsidiaries or, at and as of the Effective Time, the Company or any
of its subsidiaries, pursuant to any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which such
entity is a party or by which it may be bound or to which any of the
property or assets of Syratech or any of its subsidiaries is, and at and as
of the Effective Time, the Company or any of its subsidiaries will be
subject, nor will such action result in any violation of the provisions of
the charter or by-laws of Syratech or any of its subsidiaries or, at and as
of the Effective Time, of the Company or any of its subsidiaries or any
law, rules, regulation or administrative or court decree.
(k) Each of Syratech and each of its subsidiaries possesses and, at
and as of the Effective Time, each of the Company and each of its
subsidiaries will possess adequate certificates, authorities, permits or
other authorizations (collectively, "Permits") including, without
limitation, under any applicable Environmental Laws (as defined herein),
issued by the appropriate state, federal or foreign regulatory agencies or
bodies necessary to conduct its respective business as now or proposed to
be conducted as set forth in the Prospectus. Each of Syratech and each of
its subsidiaries has and, at and as of the Effective Time, each of the
Company and each of its subsidiaries will have fulfilled and performed all
of their respective obligations with respect to such Permits. Neither
Syratech nor any of its subsidiaries has and, at and as of the Effective
Time, the Company or any of its subsidiaries will have received any notice
or proceedings relating to the revocation or modification of any such
Permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect.
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(l) There are no legal or governmental proceedings involving or
affecting Syratech or any of its subsidiaries or any of their respective
properties or assets which are required to be described in a prospectus
pursuant to the Act or the Rules and Regulations that are not described in
the Prospectus, nor are there any material contracts or other documents
which are required to be described in a prospectus pursuant to the Act or
the Rules and Regulations that are not described in the Prospectus. There
are no material contracts or other documents which are required to be filed
as exhibits to the Registration Statement by the Act or by the Rules and
Regulations which have not been so filed. Except as set forth in the
Prospectus, there is not pending or, to the knowledge of Syratech or any
Guarantor threatened any action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, to which Syratech or
any of its subsidiaries is a party, which affects Syratech or any of its
subsidiaries or, at and as of the Effective Time, will effect the Company
or any of its subsidiaries, which, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect.
(m) Each of Syratech and each of its subsidiaries has and, at and as
of the Effective Time, each of the Company and each of its subsidiaries
will have good and marketable title in fee simple to all real property and
good and marketable title to all personal property owned by it and
necessary in the conduct of its business in each case free and clear of all
liens, encumbrances and defects except (i) such as are referred to in the
Prospectus, (ii) sales of inventory in the ordinary course of business or
(iii) such as do not materially adversely affect the value of such property
to it, and do not interfere with the use made and proposed to be made of
such property by it. All leases, contracts and agreements to which Syratech
or any of its subsidiaries is or, at and as of the Effective Time, the
Company or any of its subsidiaries will be a party or by which any of them
is bound are valid and enforceable against Syratech or any of its
subsidiaries and, at and as of the Effective Time, the Company or any of
its subsidiaries, and are valid and enforceable against the other party or
parties thereto and are in full force and effect with only such exceptions
as would not, individually or in the aggregate, have a Material Adverse
Effect.
(n) Each of Syratech and each of its subsidiaries owns or possesses
and, at and as of the Effective Time, each of the Company and each of its
subsidiaries will own or possess adequate licenses or other rights to use
all patents, trademarks, service marks, trade names, copyrights, know-how
and other intellectual property (collectively, "Trademarks") necessary to
conduct the businesses now or proposed to be operated by them as described
in the Prospectus, except as would not, individually or in the aggregate,
have a Material Adverse Effect; and the consummation of the transactions
contemplated hereby and by the Prospectus will not alter or impair any such
rights, except for such alterations or impairments as would not have a
Material Adverse Effect. Each of Syratech and each of its subsidiaries has
not and, at and as of the Effective Time, each of the Company and each of
its subsidiaries will not have received any notice of infringement of or
conflict with (or know of any such infringement of or conflict with)
alleged rights of
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others with respect to any Trademarks (or questioning the validity or
effectiveness of any license or other agreement or instrument relating
thereto) which, if such alleged infringement or conflict were sustained,
would have a Material Adverse Effect; and to the best knowledge of
Syratech, there is no valid basis for any such claim and the use of such
Trademarks by Syratech and its subsidiaries does not infringe on the rights
of any person.
(o) Each of Syratech and each of its subsidiaries has and, at and as
of the Effective Time, each of the Company and each of its subsidiaries
will have all the requisite corporate power and authority to executive,
deliver and perform its obligations under each of the Transaction Documents
(other than the Offering Documents) to which it is a party; the Merger
Agreement has been duly and validly authorized, executed and delivered by
Syratech and, immediately before the Effective Time, each of the
Transaction Documents (other than the Offering Documents) will have been
duly and validly authorized, executed and delivered by Syratech and each of
its subsidiaries (to the extent each is a party thereto), and at and as of
the Effective Time, will have been duly and validly authorized, executed
and delivered by the Company and each of its subsidiaries to the extent
that each is a party thereto; immediately before the Effective Time, each
of the Transaction Documents (other than the Offering Documents) to which
Syratech and each of its subsidiaries is a party will constitute a valid
and legally binding obligation of such party enforceable against Syratech
and each of its subsidiaries (to the extent each is a party thereto) and,
at and as of the Effective Time, the Company and each of its subsidiaries,
as applicable, in each case, in accordance with its terms; and the
Recapitalization has been duly authorized by the stockholders of Syratech.
(p) Each of Syratech and each of the Guarantors has and, at and as of
the Effective Time, each of the Company and each of the Guarantors will
have, all requisite corporate power and authority to execute, deliver and
perform its obligations under the Offering Documents, as applicable, and to
authorize, issue, sell and deliver the Senior Notes and the Subsidiary
Guarantees, as applicable, as provided herein and therein.
(q) There exists as of the date hereof and will exist on the Closing
Date, after giving effect to the transactions contemplated by each of the
Transaction Documents, no event or condition which would constitute a
default or an event of default or other violation or breach of any
Transaction Document. Each of the representations and warranties of
Syratech and each of its subsidiaries, as applicable, contained in any of
the Transaction Documents (other than the Offering Documents) are true and
correct in all material respects. Each of the Transaction Documents
conforms to the description thereof in the Registration Statement in all
material respects.
(r) Except as disclosed in the Prospectus, and except as would not
individually or in the aggregate have a Material Adverse Effect (w)
Syratech and each of its subsidiaries is in compliance with all applicable
Environmental Laws (as defined below), (x) Syratech and each its
subsidiaries has all permits, authorizations and approvals required
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under any applicable Environmental Laws and is in compliance with their
requirements, (y) there are no pending, or to the best knowledge of
Syratech or any of its subsidiaries threatened, Environmental Claims (as
defined below) against Syratech or any of its subsidiaries and (z) Syratech
and each of its subsidiaries does not have knowledge of any circumstances
with respect to any of their respective properties or operations that could
reasonably be anticipated to form the basis of an Environmental Claim
against Syratech or any of its subsidiaries or any of their respective
properties or operations and the business operations relating thereto that
would have a Material Adverse Effect. For purposes of this Agreement, the
following terms shall have the following meanings: "Environmental Law"
means, with respect to any person, any federal, state, local or municipal
statute, law, rule, regulation, ordinance, code, policy or rule of common
law and any published judicial or administrative interpretation thereof
including any judicial or administrative order, consent decree or judgment
binding on such person or any of its subsidiaries, relating to the
environment, health, safety or any chemical, material or substance,
exposure to which is prohibited, limited or regulated by any such
governmental authority. 'Environmental Claims" means any and all
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating in any way to any Environmental Law.
(s) In the ordinary course of its business, Syratech conducts a
periodic review of the effect of Environmental Laws on the business,
operations and properties of Syratech and its subsidiaries, in the course
of which it identifies and evaluates associate costs and liabilities
(including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and potential liabilities to third
parties). On the basis of such review, Syratech has reasonably concluded
that such associated costs and liabilities would not, singly or in the
aggregate, have a Material Adverse Effect.
(t) Neither Syratech nor any of its subsidiaries has and, at and as of
the Effective Time, neither the Company nor any of its subsidiaries will
have violated any foreign, federal or state law relating to discrimination
in the hiring, promotion or pay of employees nor any applicable foreign,
federal or state wages and hours laws, nor any provisions of the Employee
Retirement Income Security Act or the rules and regulations promulgated
thereunder, which in each case would singly or in the aggregate, have a
Material Adverse Effect.
(u) There is (i) no unfair labor practice complaint pending against
Syratech or any of its subsidiaries or, to the best knowledge of Syratech,
threatened against any of them, before the National Labor Relations Board
or any state or local labor relations board, and no significant grievance
or more significant arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against Syratech or any of
its subsidiaries or, to the best knowledge of Syratech, threatened against
any of them, and
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(ii) no significant strike, labor dispute, slowdown or stoppage pending
against Syratech or any of its subsidiaries or, to the best knowledge of
Syratech, threatened against it or any of its subsidiaries.
(v) Each of Syratech and each of Syratech's subsidiaries carries and,
at and as of the Effective Time, each of the Company and each of its
subsidiaries will carry reasonably adequate insurance (including
self-insurance) in such amounts and covering such risks as would be
obtained by companies in the same or similar businesses in the ordinary
course for the conduct of its business and the value of its properties.
(w) Each of Deloitte & Touche LLP and Coopers & Lybrand, L.L.P. (the
"Independent Accountants") are independent public accountants as required
by the Act.
(x) The financial statements, together with related schedules and
notes forming part of the Registration Statement and the Prospectus (and
any amendment or supplement thereto), present fairly the consolidated
financial position, results of operations and changes in financial position
of Syratech and its subsidiaries on the basis stated in the Registration
Statement at the respective dates or for the respective periods to which
they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data set
forth in the Registration Statement and the Prospectus (and any amendment
or supplement thereto) is, in all material respects, accurately presented
and prepared on a basis consistent with such financial statements, except
as otherwise stated therein. The statistical and market-related data
(including, without limitation, the estimated cost savings information)
included in the Registration Statement and the Prospectus are based on or
derived from sources which Syratech believes to be reliable and accurate.
(y) The pro forma financial statements (including the notes thereto)
and the other pro forma financial information included in the Prospectus
(i) comply as to form in all material respects with the applicable
requirements of Regulation S-X promulgated under the Exchange Act, (ii)
have been prepared in accordance with the Commission's rules and guidelines
with respect to pro forma financial statements and (iii) have been properly
computed on the bases described therein; the assumptions used in the
preparation of the pro forma financial data and other pro forma financial
information included in the Prospectus are reasonable in all material
respects and the adjustments used therein are appropriate in all material
respects to give effect to the transactions or circumstances referred to
therein.
(z) Neither Syratech nor any of its subsidiaries is or, at and as of
the Effective Time, neither the Company nor any of its subsidiaries will be
an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
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(aa) No holder of any security of Syratech or any of its subsidiaries
has any right to require registration of shares of common stock or any
other security of Syratech or any of its subsidiaries. At and as of the
Effective Date, no holder of any security of the Company or any of its
subsidiaries will have any right to require registration of shares of
common stock or any other security of the Company or any of its
subsidiaries.
(bb) Each of Syratech and each of the Guarantors has complied with all
provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws of
Florida).
(cc) Syratech and each of its subsidiaries maintains a system of
internal accounting controls sufficient to prove 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 that conform with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(dd) Each of Syratech and each of its subsidiaries has and, at and as
of the Effective Time, each of the Company and each of its subsidiaries
will have filed all necessary federal, state and foreign income and
franchise tax returns required to be filed, other than those filings being
contested in good faith, and all material taxes, including withholding
taxes, penalties and interest, assessments, fees and other charges due
pursuant to such returns or pursuant to any assessment received by Syratech
or any of its subsidiaries have been or, at and as of the Effective Date,
received by the Company or any of its Subsidiaries will be paid, other than
those being contested in good faith and for which adequate reserves have
been provided.
(ee) Except as stated in the Prospectus none of Syratech or any of its
subsidiaries know of any outstanding claims for services, either in the
nature of a finder's fee, financial advisory fee, origination fee or
similar fee, with respect to the transactions contemplated hereby.
(ff) This Agreement has been duly authorized, executed and delivered
by Syratech and each of the Guarantors.
(gg) The Indenture has been duly qualified under the 1939 Act and has
been duly authorized, and when executed and delivered by each of Syratech
and each of the Guarantors, will be a valid and binding agreement of each
of Syratech and each of the Guarantors (and, at and as of the Effective
Time, each of the Company and each of the Guarantors), enforceable in
accordance with its terms.
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(hh) The Senior Notes have been duly authorized by Syratech, and, when
executed and authenticated in accordance with the provisions of the
Indenture, will conform in all material respects to the description thereof
in the Prospectus and when delivered to and paid for by the Underwriters in
accordance with this Agreement, will be valid and binding obligations of
Syratech (and, at and as of the Effective Time, the Company), will be
entitled to the benefits of the Indenture and will be enforceable in
accordance with their terms.
(ii) The Subsidiary Guarantees have been duly authorized by each of
the Guarantors, and, when executed and authenticated in accordance with the
provisions of the Indenture, will conform in all material respects to the
description thereof in the Prospectus, will be valid and binding
obligations of each of the Guarantors, will be entitled to the benefits of
the Indenture and will be enforceable in accordance with their terms.
(jj) None of Syratech, any of its subsidiaries or any agent thereof
acting on the behalf of their behalf has taken, and none of them will take,
any action that might cause the New Credit Facility, this Agreement or the
issuance or sale of the Securities pursuant to the terms of this Agreement
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.
(kk) Immediately after the consummation of the Merger and the
transactions contemplated by the Transaction Documents, the fair value and
present fair saleable value of the assets of Company and its subsidiaries
(on a consolidated basis) will exceed the sum of their stated liabilities
and identified contingent liabilities; and Syratech (on a consolidated
basis) is not, nor will the Company and its subsidiaries (on a consolidated
basis) after giving effect to the execution, delivery and performance of
the Transaction Documents and the consummation of the transactions
contemplated thereby be, (i) left with unreasonably small capital with
which to carry on their respective businesses as they are proposed to be
conducted, (ii) unable to pay their debts (contingent or otherwise) as they
mature or (iii) otherwise insolvent.
SECTION 3. Representations, Warranties and Agreements of THLT. THLT
represents and warrants to, and agrees with, the several Underwriters that:
(a) THLT has been duly incorporated, and THLT is validity existing as
a corporation in good standing under the laws of Delaware.
(b) All of the outstanding shares of capital stock of THLT are duly
authorized and validly issued, fully paid and nonassessable and not issued
in violation of any preemptive or similar rights.
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(c) THLT has all the requisite corporate power and authority to
executive, deliver and perform its obligations under each of the
Transaction Documents to which it is a party; the Merger Agreement has been
duly and validly authorized, executed and delivered by THLT and, each of
the Transaction Documents to which it is a party will, as of the Closing
Date, have been duly and validly authorized, executed and delivered by THLT
and, each of the Transaction Documents to which THLT is a party constitute
or will, as of the Closing Date, constitute a valid and legally binding
obligation of THLT enforceable against THLT, in accordance with its terms.
(d) No consent, approval, authorization or order of any court or
governmental authority or agency, or third party is required for the
performance of any of the Transaction Documents by THLT or the consummation
by THLT of the transactions contemplated by the Transaction Documents. The
execution, delivery and performance by THLT, to the extent it is a party
thereto, of the Transaction Documents and the consummation of the
transactions contemplated therein will not conflict with or constitute a
breach of, or default under, any material contract to which THLT is a party
or by which it may be bound, nor will such action result in any violation
of the provisions of the charter or by-laws of THLT or any law, rule,
regulation or administrative or court decree.
(e) This Agreement has been duly authorized, executed and delivered by
THLT. THLT was formed solely for the purpose of consummating the
Recapitalization. THLT has no material assets or liabilities, conducts no
business and is a party to no material agreements other than this Agreement
and as described in the Prospectus.
(f) Except as stated in the Prospectus THLT does not know of any
outstanding claims for services, either in the nature of a finder's fee,
financial advisory fee, origination fee or similar fee, with respect to the
transactions contemplated hereby.
SECTION 4. Purchase, Sale and Delivery of Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, Syratech and the Guarantors agree to
issue and sell to the Underwriters, and each Underwriter agrees, severally and
not jointly, to purchase from Syratech and the Guarantors at a purchase price of
____________% of principal amount per Senior Note plus accrued interest, if any,
from _______________, 1997 to the date of payment and delivery, the respective
principal amount of Senior Notes set forth opposite such Underwriter's name in
Schedule I hereto.
The Company hereby confirms its engagement of Chase Securities Inc.
("Chase"), one of the Underwriters listed in Schedule I hereto, as, and Chase
hereby confirms its agreement with the Company to render services as, a
"qualified independent underwriter," within the meaning of Section (b)(15) of
Rule 2720 of the Conduct Rules of the National Association of Securities
Dealers, Inc. (the "NASD") with respect to the offering and sale of the
Securities. Chase, solely in its capacity as qualified independent underwriter
and not otherwise, is referred
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to herein as the "QIU." As compensation for the services of the QIU hereunder,
the Company agrees to pay Chase $5,000 on the Closing Date. The Company agrees
that the yield at which the Senior Notes are sold to the public will be no lower
than the yield recommended by Chase acting as QIU.
The Company will deliver the Securities to you for the accounts of the
Underwriters, against payment of the purchase price therefor by one or more
certified or official bank checks payable in New York Clearing House or other
next day funds drawn to the order of the Company, at the office of Latham &
Watkins, New York, New York at 10:00 A.M., New York time, on ___________ __,
1997 or at such other place or time not later than seven full business days
thereafter as you and the Company determine, such time being referred to herein
as the "Closing Date."
The certificates for all the Securities so to be delivered will be in
such denominations and registered in such names as you request two full business
days prior to the Closing Date and will be made available at the office of
NationsBanc Capital Markets, Inc., Charlotte, North Carolina or, upon your
request, through the facilities of The Depository Trust Company, for checking
and packaging at least one full business day prior to the Closing Date.
SECTION 5. Offering by Underwriters. After the Registration Statement
becomes effective the several Underwriters will offer the Securities for sale to
the public on the terms as set forth in the Prospectus.
SECTION 6. Certain Covenants. Each of Syratech and each Guarantor
jointly and severally covenants and agrees with the several Underwriters that:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Securities may
commence, Syratech will endeavor to cause the Registration Statement or
such post-effective amendment to become effective as soon as possible and
will advise you promptly and, if requested by you, will confirm such advice
in writing, when the Registration Statement or such post-effective
amendment has become effective.
(b) Syratech will not file any amendment to the Registration Statement
or make any amendment or supplement to the Prospectus or file any document
which, upon filing becomes an Incorporated Document, of which you shall not
previously have been advised or to which, after you shall have received a
copy of the document proposed to be filed, you shall reasonably object.
(c) Syratech will advise you promptly and, if requested by you, will
confirm such advice in writing: (i) when the Registration Statement has
become effective, if and when the Prospectus is sent for filing pursuant to
Rule 424 under the Act and when any
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post-effective amendment to the Registration Statement becomes effective;
(ii) of any request by the Commission for amendment of or a supplement to
the Registration Statement, any preliminary prospectus or the Prospectus or
for additional information; (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of
the suspension of qualification of the Securities for offering or sale in
any jurisdiction or the initiation of any proceeding for such purpose; and
(iv) of any change in the Company's condition (financial or other),
business, prospects, properties, net worth or results of operations, or of
the happening of any event, which makes any statement of a material fact
made in the Registration Statement or the Prospectus (as then amended or
supplemented) untrue or which requires the making of any additions to or
changes in the Registration Statement or the Prospectus (as then amended or
supplemented) in order to state a material fact required by the Act to be
stated therein or necessary in order to make the statements therein not
misleading, or of the necessity to amend or supplement the Prospectus (as
then amended or supplemented) to comply with the Act or any other law. If
at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible time.
(d) As soon after the execution and delivery of this Agreement as
practicable and thereafter from time to time for such period as in the
opinion of counsel for the Underwriters a Prospectus is required by the Act
to be delivered in connection with sales by the Underwriters or any dealer,
Syratech will expeditiously deliver to the Underwriters and each dealer,
without charge, as many copies of the Prospectus (and of any amendment or
supplement thereto) as you may request. Syratech consents to the use of the
Prospectus (and of any amendment or supplement thereto), in accordance with
the provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Securities are offered by the Underwriters and
by all dealers to whom the Securities may be sold, both in connection with
the offering and sale of the Securities and for such period of time
thereafter as the Prospectus is required by the Act to be delivered in
connection with sales by the Underwriters or any dealer. If during such
period of time any event shall occur that in the judgment of Syratech or in
the opinion of counsel for the Underwriters is required to be set forth in
the Prospectus (as then amended or supplemented) or should be set forth
therein in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary to supplement or amend the Prospectus (or to file under the
Exchange Act any document which, upon filing, becomes an Incorporated
Document) in order to comply with the Act or any other law, Syratech will
forthwith prepare and, subject to the provisions of paragraph (b) above,
file with the Commission an appropriate supplement or amendment thereto (or
to such document), and will expeditiously furnish to the Underwriters and
dealers a reasonable number of copies thereof. In the event that Syratech
and the Underwriters agree that the Prospectus should be amended or
supplemented, the Company, if requested by you, will promptly issue a press
release announcing or disclosing the matters to be covered by the proposed
amendment or supplement.
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(e) Syratech will mail and make generally available to its security
holders as soon as practicable an earnings statement covering a period of
at least twelve months after the effective date of the Registration
Statement (but in no event commencing later than 90 days after such date)
which shall satisfy the provisions of Section 11(a) of the Act and the
Rules and Regulations (including Rule 158). Syratech will also advise you
in writing when such statement has been so made available.
(f) Syratech will deliver to each of you as many signed and conformed
copies of the registration statement (as originally filed) and of each
amendment thereto (including exhibits filed therewith) as you may
reasonably request and will also deliver to you a conformed copy of the
Registration Statement and each amendment thereto for each of the
Underwriters.
(g) Syratech and each Guarantor will endeavor, in cooperation with
you, to qualify the Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States
as you may designate, and will maintain such qualifications in effect for
as long as may be required for the distribution of the Securities. Syratech
and each Guarantor will file such statements and reports as may be required
by the laws of each jurisdiction in which the Securities have been
qualified as above provided.
(h) During the period of five years hereafter, Syratech will furnish
to you and upon request, to each of the other Underwriters, as soon as
practicable after the end of each fiscal year, a copy of its annual report
to stockholders for such year, and Syratech will furnish to you (i) as soon
as available, a copy of each report (including, without limitation,
quarterly reports containing Syratech's consolidated balance sheet, a
consolidated statement of operations and a consolidated statement of cash
flows) or definitive proxy statement of Syratech filed with the Commission
under the Exchange Act or mailed to stock holders, and (ii) from time to
time, such other information concerning Syratech as you may reasonably
request.
(i) If Rule 430A of the Act is employed, Syratech will timely file the
Prospectus pursuant to Rule 424(b) under the Act and will advise you of the
time and manner of such filing. Syratech will timely complete all required
filings and otherwise fully comply in a timely manner with all provisions
of the Exchange Act.
(j) During the period beginning on the date hereof and continuing to
and including the Closing Date, Syratech and each Guarantor will not offer,
sell contract to sell or otherwise dispose of any debt securities of
Syratech or any Guarantor or warrants to purchase debt securities of
Syratech or any Guarantor substantially similar to the Securities (other
than the Securities), without your prior written consent.
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(k) Each of Syratech and each Guarantor will use its best efforts to
do and perform all things required or necessary to be done and performed
under this Agreement by Syratech and the Guarantors prior to the Closing
Date and to satisfy all conditions precedent to the delivery of the
Securities.
(l) Syratech will apply the net proceeds from the sale of the
Securities (together with any other net proceeds received from the
Recapitalization) as set forth under "Use of Proceeds" in the Prospectus.
SECTION 7. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Securities
on the Closing Date will be subject to satisfaction of each of the following
conditions:
(a) Each of the representations and warranties on the part of Syratech
(and, at and as of the Effective Time, the Company), the Guarantors and
THLT contained herein shall be true and correct in all material respects on
the date herein and on the Closing Date with the same force and effect as
if made on and as of the Closing Date.
(b) The Registration Statement shall have become effective (or if a
post-effective amendment is required to be filed pursuant to Rule 430A
under the Act, such post-effective amendment shall have become effective)
not later than 5:00 P.M. New York time, on the date of this Agreement, or
such later time or date as shall have been consented to by you, and all
filings, if any, required by Rules 424 and 430A under the Act shall have
been timely made; and prior to the Closing Date no stop order suspending
the effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted, or to the
knowledge of the Company or you, shall be contemplated by the Commission,
and any request of the Commission for additional information (to be
included in the registration statement or the Prospectus or otherwise)
shall have been complied with to your satisfaction.
(c) You shall not have advised Syratech (or, at and as of the
Effective Time, the Company) that the Registration Statement or Prospectus,
or any amendment or supplement thereto, contains an untrue statement of
fact or omits to state a fact which, you have concluded, is material and in
the case of an omission is required to be stated therein or is necessary to
make the statements therein not misleading.
(d) (i) Since the date of the latest balance sheet included in the
Registration Statement and the Prospectus, there shall not have been any
material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in
the earnings, affairs or business prospects, whether or not arising in the
ordinary course of business, of Syratech and its subsidiaries, (ii) since
the date of the latest balance sheet included in the Registration Statement
and the Prospectus there shall not have been any change, or any development
involving a prospective material
-17-
adverse change, in the capital stock or in the long-term debt of Syratech
and its subsidiaries from that set forth in the Registration Statement and
Prospectus, (iii) Syratech and its subsidiaries shall have no liability or
obligation, direct or contingent, which is material to Syratech and its
subsidiaries (or, at and as of the Effective Time, the Company and its
subsidiaries), taken as a whole, other than those reflected in the
Registration Statement and the Prospectus and (iv) on the Closing Date you
shall have received a certificate of Syratech, dated the Closing Date,
signed on its behalf by (x) the president or any vice president and (y) a
principal financial or accounting officer of Syratech confirming, as of the
Closing Date, the matters set forth in paragraphs (a), (b), (c) and (d) of
this Section 7 and confirming that the representations and warranties
contained in Section 2 are true and correct with the same force and effect
as though made on and as of the Closing Date.
(e) As of the Closing Date, the Company will have delivered to the
Underwriters true and correct executed copies of the Transaction Documents
(other than the Offering Documents), in the form as originally executed,
together with all related documents, instruments and agreements and all
schedules or exhibits thereto; there will have been no amendments,
alterations, modifications or waivers thereto or in the exhibits or
schedules thereto other than those as to which the Underwriters shall
previously have been advised and shall not have reasonably objected after
being furnished a copy thereof.
(f) On the Closing Date you shall have received a certificate, dated
the Closing Date, of THLT, signed on behalf of such party by (x) the
president or any vice president and (y) any other officer confirming, as of
the Closing Date, the matters set forth in paragraph (a) of this Section 7
(as to THLI) and confirming that the representations and warranties of THLT
contained in Section 3 are true and correct with the same force and effect
as though made on and as of the Closing Date.
(g) None of the issuance and sale of the Securities pursuant to this
Agreement, the Recapitalization or any of the other transactions
contemplated by any of the Transaction Documents or the Prospectus shall be
enjoined (temporarily or permanently) and no restraining order or other
injunctive order shall have been issued or any action, suit or proceeding
shall have been commenced with respect to this Agreement, the Merger
Agreement, the New Credit Facility, the Recapitalization or any of the
other transactions contemplated by the Prospectus, before any court or
governmental authority.
(h) On the Closing Date, the Underwriters shall have received copies
of all certificates, documents and opinions delivered by Syratech, THL or
any of their respective affiliates, or any of their counsels and such other
certificates, documents and opinions reasonably obtainable by Syratech, THL
or any of their respective affiliates delivered to any such party under the
Transaction Documents, in each case, together with letters addressed to the
Underwriters, stating that the Underwriters may rely on such certificates,
documents and opinions as if they had been addressed to the Underwriters.
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(i) You shall have received a favorable opinion of Paul, Weiss,
Rifkind & Garrison, counsel for Syratech, dated the Closing Date to the
effect that:
(i) Syratech has been duly incorporated and is validly existing
as a corporation in good standing under the laws of Delaware with
corporate power and authority to own, lease and operate its properties
and conduct its business as described in the Registration Statement;
and Syratech is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which it owns
or leases property or in which the conduct of its business requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a Material Adverse
Effect.
(ii) Each of the Guarantors has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement, and, to the best
of their knowledge and information, is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which it owns or leases properties or in which the
conduct of its business requires such qualification, except to the
extent that the failure to be so qualified or be in good standing
would not have a Material Adverse Effect; all of the issued and
outstanding capital stock of each of the Guarantors has been duly
authorized and validly issued and is fully paid and non-assessable,
and all of such capital stock, to the best of their knowledge and
information, is owned by Syratech and, at and as of the Effective
Time, will be owned by the Company free and clear of any pledge, lien,
encumbrance, claim or equity.
(iii) Syratech has the authorized, issued and outstanding capital
stock as set forth in the Prospectus; all of the outstanding shares of
capital stock of Syratech have been duly authorized and validly
issued, are fully paid and nonassessable and were not, to the best of
such counsel's knowledge, issued in violation of any preemptive or
similar rights.
(iv) To the knowledge of such counsel, there are, and after
giving effect to the Recapitalization, will be, 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 Syratech, the
Company or any of the Guarantors, except as described in the
Prospectus.
(v) Each of Syratech and, after giving effect to the
Recapitalization, the Company has all the requisite corporate power
and authority to execute, deliver
-19-
and perform its respective obligations under each of the Transaction
Documents to which it is a party.
(vi) Each of the Syratech's subsidiaries has, both before and
after giving to the Merger, all the requisite corporate power and
authority to execute, deliver and perform its respective obligations
under each of the Transaction Documents to which it is a party.
(vii) Each of Syratech and, at and as of the Effective Time, the
Company has duly authorized, executed and delivered each of the
Transaction Documents (other than the Offering Documents) to which it
is party.
(viii) Each of Syratech's subsidiaries has duly authorized,
executed and delivered each of the Transaction Documents (other than
the Offering Documents) to which it is party.
(ix) Each of Syratech and each of the Guarantors has, and after
giving effect to the Recapitalization, the Company will have duly and
validly authorized this Agreement and the consummation by Syratech,
the Company and the Guarantors of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by each of
Syratech and the Guarantors.
(x) The Indenture has been duly qualified under the 1939 Act.
Each of Syratech and each of the Guarantors has, and after giving
effect to the Merger, the Company will have duly and validly
authorized, executed and delivered the Indenture, and the Indenture
constitutes a valid and binding agreement of each of Syratech and each
of the Guarantors, and after giving effect to the Merger, the Company
enforceable against them in accordance with its terms except as (a)
the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (b) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability.
(xi) Syratech has, and after giving effect to the Merger, the
Company will have duly authorized the Senior Notes, which, when
executed and authenticated in accordance with the provisions of the
Indenture, and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be valid and binding
obligations of Syratech and, at and as of the Effective Time, the
Company, enforceable against Syratech and, after giving effect to the
Merger, the Company in accordance with their terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (b) rights of
acceleration and the
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availability of equitable remedies may be limited by equitable
principles of general applicability, and will be entitled to the
benefits of the Indenture.
(xii) Each of the Guarantors has duly authorized the Subsidiary
Guarantees, which, when executed and authenticated in accordance with
the provisions of the Indenture, and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be
valid and binding obligations of each of the Guarantors, enforceable
against each of them in accordance with the terms of the Subsidiary
Guarantees except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (b) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability, and will be entitled to the benefits of the Indenture.
(xiii) The Indenture, the Senior Notes and the Subsidiary
Guarantees conform in all material respects to the descriptions
thereof contained in the Prospectus.
(xiv) The Registration Statement is effective under the Act and,
to the best of their knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the Act or proceedings therefor initiated or threatened
by the Commission.
(xv) No consent, approval, authorization or order of any court or
governmental authority or agency, or third party is required (which
has not been obtained) in connection with the consummation by Syratech
(or after giving effect to the Recapitalization, the Company) or any
of its subsidiaries of the transactions contemplated by the
Transaction Documents, except such as may be required under state
securities or Blue Sky laws.
(xvi) To the best of their knowledge and information, the
execution, delivery and performance by Syratech (or after giving
effect to the Recapitalization, the Company) or any of its
subsidiaries, to the extent each is a party thereto, of the
Transaction Documents and the consummation of the transactions
contemplated thereby will not conflict with or constitute a breach of,
or default under (or an event which with notice or passage of time or
both would constitute or a default under) or violation of any of (A)
any material contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which such entity is a party or by which
it may be bound or to which any of their respective property or assets
is, and at and as of the Effective Time will be subject, (B) the
provisions of the charter or by-laws of such entity, or (C) (assuming
compliance with all applicable state securities or Blue Sky laws) any
law, administrative regulation or administrative or court decree
applicable to such entity or any of its
-21-
respective properties or assets, except for any such breach or
violation which would not, individually or in the aggregate, have a
Material Adverse Effect.
(xvii) None of Syratech (or after giving effect to the
Recapitalization, the Company) or any of its subsidiaries is (i) in
violation of its charter documents, (ii) to the knowledge of such
counsel, in breach or violation of any law, administrative regulation
or administrative or court decree applicable to any of them or any of
their respective properties or assets, except for any such breach or
violation which would not, individually or in the aggregate, have a
Material Adverse Effect or (iii) in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or
by which its respective properties may be bound.
(xviii) After due inquiry, such counsel does not know of any
legal or governmental proceeding pending or threatened to which
Syratech (or, after giving effect to the Recapitalization, the
Company) or any of its subsidiaries is or will be a party or to which
any of their respective properties is or will be subject that is
required to be described in the Registration Statement or the
Prospectus and is not so described or of any material contract or
other document that is required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement or in any Incorporated Document that is not so
described or filed as required.
(xix) No legal or governmental proceedings are pending or, to the
knowledge of such counsel, threatened to which Syratech or any of its
subsidiaries is and, at and as of the Effective Time, the Company will
be a party or to which any of their respective properties is subject
which, if determined adversely to such party would result,
individually or in the aggregate, in a Material Adverse Effect, or
which seeks to restrain, enjoin, prevent the consummation of or
otherwise challenge the issuance and sale of the Securities or the
consummation of the other transactions contemplated by the Transaction
Documents.
(xx) To the best of such counsel's knowledge, Syratech and each
of its subsidiaries owns and possesses adequate Trademarks to conduct
the businesses now or proposed to be operated by them.
(xxi) To the best of such counsel's knowledge, after due inquiry,
neither Syratech nor any of its subsidiaries has violated any
Environmental Laws, which in each case might result in any Material
Adverse Effect.
(xxii) None of Syratech or any of its subsidiaries is or, at and
as of the Effective Time, the Company will be an "investment company"
or a company
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"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(xxiii) Neither the consummation of the transactions contemplated
by the New Credit Facility and this Agreement nor the issuance or sale
of the Securities will 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.
(xxiv) Such counsel (1) is of the opinion that the Registration
Statement (other than the financial statements included therein, as to
which no opinion need be expressed) complies as to form in all
material respects with the requirements of the Act and the Rules and
Regulations, and (2) is of the opinion that the Incorporated Documents
that have been filed with the Commission on or before the date of such
opinion (other than the financial statements included therein, as to
which no opinion need be expressed) complies as to form in all
material respects with the Exchange Act and the rules and regulations
of the Commission thereunder.
(xxv) Such counsel (1) believes that (other than the financial
statements included therein, as to which no belief need be expressed
and except for that part of the Registration Statement that
constitutes the Form T-1) the Registration Statement, at the time it
became effective, did not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and (2)
believes that the Prospectus, as amended or supplemented at the
Closing Date, does not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
With respect to subparagraph (xxv) of paragraph (g) above, such counsel
may state its opinion and belief is based upon its participation in the
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto and review and discussion of the contents thereof, but is
without independent check or verification except as specified.
(h) You shall have received a favorable opinion of Hutchins, Wheeler &
Dittmar, counsel for THLT, dated the Closing Date to the effect that:
(i) THLT has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Delaware.
(ii) All of the outstanding shares of capital stock of THLT have been
duly authorized and validly issued, are fully paid and nonassessable and
were not,
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to the best of such counsel's knowledge, issued in violation of any
preemptive or similar rights.
(iii) THLT has, both before and after giving to the Recapitalization,
all the requisite corporate power and authority to execute, deliver and
perform its obligations under each of the Transaction Documents to which it
is a party.
(iv) THLT has duly authorized, executed and delivered each of the
Transaction Documents to which it is a party; such Transaction Documents
will constitute valid and legally binding obligations of THLT, enforceable
against THLT (to the extent THLT is a party thereto), in accordance with
its terms, except as rights to indemnity hereunder may be limited by
applicable law.
(v) No consent, approval, authorization or order of any court or
governmental authority or agency, or third party is required for the
performance of any of the Transaction Documents by THLT (to the extent THLT
is a party thereto) or the consummation by THLT of the transactions
contemplated by the Transaction Documents. The execution, delivery and
performance by THLT, to the extent it is a party thereto, of the
Transaction Documents and the consummation of the transactions contemplated
therein will not conflict with or constitute a breach of, or default under,
any material contract to which THLT is a party or by which it may be bound,
nor will such action result in any violation of the provisions of the
charter or by-laws of THLT or any law, administrative regulation or
administrative or court decree applicable to THLT.
(vi) Such counsel (1) believes that (other than the financial
statements included therein, as to which no belief need be expressed and
except for that part of the Registration Statement that constitutes the
Form T-1) the Registration Statement, at the time it became effective, did
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and (2) believes that the Prospectus, as
amended or supplemented at the Closing Date, does not contain any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
With respect to subparagraph (vi) of paragraph (h) above, Hutchins,
Wheeler & Dittmar may state its opinion and belief is based upon its
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and review and discussion of the
contents thereof, but is without independent check or verification except as
specified.
-24-
(i) You shall have received a favorable opinion of Latham & Watkins,
counsel for the Underwriters, dated the Closing Date, in form and substance
satisfactory to you.
(j) You shall have received from each of the Independent Accountants,
two letters, the first delivered the day of but prior to the execution of,
and dated the date of, this Agreement and the other dated the Closing Date,
addressed to the Underwriters (with conformed copies for each of the
Underwriters), in the form heretofore agreed (and in the case of the second
such letter consistent with the first such letter) with such variations as
are reasonably acceptable to you.
(k) On the Closing Date:
(1) the Certificate of Merger with respect to the Merger shall be
in form and substance satisfactory to the Underwriters and Latham &
Watkins, counsel for the Underwriters, shall have been pre-cleared for
filing with the Secretary of State of the State of Delaware and shall
be ready in all respects for filing immediately upon consummation of
each of the transactions contemplated by the Prospectus to be
consummated prior to the Merger;
(2) the New Credit Facility with aggregate commitments thereunder
of not less than $130,000,000 shall be in full force and effect, no
event shall have occurred and no event shall have failed to occur,
which would relieve the lenders under the New Credit Facility (the
"Lenders") of their obligation to advance funds, or preclude them from
advancing funds to Syratech thereunder, and concurrently with the
Closing the Lenders shall have advanced funds under the New Credit
Facility in such amounts as are necessary to fund the Recapitalization
(after giving effect to the Equity Financing and the sale of the
Securities hereunder); and
(3) The Equity Financing shall have been consummated on terms and
conditions satisfactory to the Underwriters.
(l) Simultaneously with the Closing, the closing contemplated by the
Merger Agreement, including without limitation the Merger, shall have been
consummated in accordance with the terms of the Merger Agreement.
(m) Counsel for the Underwriters shall have been furnished with such
other documents and opinions as they may reasonably require.
SECTION 8. Payment of Expenses. Whether or not any of the transactions
contemplated hereby are consummated, or this Agreement is terminated, Syratech
and the Guarantors jointly and severally agree to pay all costs, expenses, fees
and taxes incident to (i) the preparation, printing, filing and distribution
under the Act of the Registration Statement (including financial statements and
exhibits), the Prospectus, each preliminary prospectus, the Incorporated
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Documents, and all amendments and supplements to any of them, (ii) the
preparation, printing (including word processing and duplication costs) and
delivery of this Agreement, the Indenture, Preliminary and Supplemental Blue Sky
Memoranda and all other agreements, memoranda, correspondence and other
documents printed and delivered in connection with the offering of the
Securities, (iii) the registration with the Commission, and the issuance by the
Company and the Guarantors of the Securities, (iv) the registration or
qualification of the Securities for offer and sale under the securities or Blue
Sky laws of the several states as described in Section 6(e) (including the
reasonable fees and disbursements of your counsel relating to such registration
or qualification), (v) the fees and expenses of rating agencies, (vi) the
furnishing of such copies of the Registration Statement, Prospectus and
preliminary prospectus, and all amendments and supplements to any of them, as
may be reasonably requested by you; (vii) filings and clearance with the
National Association of Securities Dealers, Inc. in connection with the
offering; (viii) the listing of the Securities on a stock exchange or automated
quotation system, if any; (ix) the QIU (including fees and disbursements of
counsel for the QIU); (x) expenses of Syratech and the Guarantors in connection
with any meetings with prospective investors in the Securities; (xi) advertising
relating to the offering of the Securities (other than as shall have been
specifically approved by the Underwriters to be paid for by the Underwriters);
and (xii) the performance by Syratech and the Guarantors (and after giving
effect to the Merger, the Company and the Guarantors) of their other respective
obligations under this Agreement, including (without limitation) the fees of the
Trustee, the costs of the Trustee's personnel and other internal costs, the cost
of printing and engraving the certificates representing the Securities, all
expenses and taxes incident to the sale and the delivery of the Securities to
you, and fees and expenses of counsel for the Syratech, any Guarantor or the
Company for providing such opinions as you may reasonably request.
If this Agreement is terminated by you in accordance with the
provisions of Section 7 or Section 12, Syratech and the Guarantors jointly and
severally shall reimburse you for all of your out-of-pocket expenses, including
the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 9. Indemnification and Contribution. (a) Each of Syratech and
each Guarantor (and, after giving effect to the Recapitalization, each of the
Company and each Guarantor), jointly and severally, agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities or judgments
(including without limiting the foregoing the reasonable legal and other
expenses incurred in connection with any action, suit or proceeding or any claim
asserted) arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities, judgments or expenses are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to such Underwriter
-26-
furnished in writing to Syratech or any Guarantor by such Underwriter through
you expressly for use therein. This indemnity agreement will be in addition to
any liability which Syratech and the Guarantors (and, after giving effect to the
Merger, the Company and the Guarantors) may otherwise have to the persons
referred to above in this Section 9(a) and Section 10(a).
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless Syratech, each Guarantor (and, after giving effect to the
Recapitalization, the Company and the Guarantors), their respective directors,
their respective officers who sign the Registration Statement and each person,
if any, who controls Syratech or any Guarantor (and, after giving effect to the
Recapitalization, the Company or any Guarantor) within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act from and against any and
all losses, claims, damages, liabilities, judgments and expenses caused by any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus (as amended or supplemented if Syratech
and the Guarantors (or, after giving effect to the Recapitalization, the Company
and the Guarantors) shall have furnished any amendments or supplements thereto)
or any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, but only with reference to information
relating to such Underwriter furnished to Syratech or any Guarantor (or, after
giving effect to the Merger, the Company or any Guarantor) in writing by such
Underwriter through you expressly for use in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any preliminary prospectus.
(c) In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be instituted involving any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (hereinafter called the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought
(hereinafter called the "indemnifying party") in writing and the indemnifying
party, upon request of the indemnified party, shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the indemnifying party
may designate and shall pay the fees and disbursements of such counsel related
to such proceeding. In any such action or proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the indemnifying party shall have failed to
assume the defense and employ counsel or (iii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests among
them. It is understood that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
(a) the reasonable fees and expenses of more than one separate firm (in addition
to local counsel) for all Underwriters and all persons, if any, who control the
Underwriters within the meaning of either Section 15 of the Act or Section 20 of
the Exchange Act and (b) the reasonable fees and expenses of more than one
separate firm (in addition to local counsel) for Syratech and the
-27-
Guarantors (or, after giving effect to the Recapitalization, the Company and the
Guarantors), their respective directors, their respective officers who sign the
Registration Statement and each person, if any, who controls Syratech and the
Guarantors (or, after giving effect to the Recapitalization, the Company and the
Guarantors) within the meaning of either such Section and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons of the Underwriters,
such firm shall be designated in writing by NationsBanc Capital Markets, Inc. In
the case of any such separate firm for Syratech and the Guarantors (or, after
giving effect to the Recapitalization, the Company and the Guarantors), and such
directors, officers and control persons of Syratech and the Guarantors (or,
after giving effect to the Recapitalization, the Company and the Guarantors),
such firm shall be designated in writing by Syratech (or, after giving effect to
the Recapitalization, the Company). The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent; but
if settled with such consent of if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the immediately preceding sentence, if in any case where the
fees and expenses of counsel are at the expense of the indemnifying party and an
indemnified party shall have requested the indemnifying party to reimburse the
indemnified party for such fees and expenses of counsel as incurred, such
indemnifying party agrees that it shall be liable for any settlement of any
action effected without its written consent if (i) such settlement is entered
into more than twenty business days after the receipt by such indemnifying party
of the aforesaid request and (ii) such indemnifying party shall have failed to
reimburse the indemnified party in accordance with such request for
reimbursement prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments 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 losses, claims,
damages, liabilities and expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Syratech and the Guarantors (and,
after giving effect to the Recapitalization, the Company and the Guarantors) on
the one hand and the Underwriters on the other from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of Syratech and the Guarantors (and, after giving effect to the
Recapitalization, the Company and the Guarantors) on the one hand and the
Underwriters on the other in connection with the statements or omissions or
actions or failure to act which resulted in such losses, claims, damages,
liabilities, judgments or expenses, as well as any other relevant equitable
considerations. The relative benefits received by Syratech
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and the Guarantors (or, after giving effect to the Recapitalization, the Company
and the Guarantors) on the one hand and the Underwriters on the other shall be
deemed to be in the same proportions as the total net proceeds from the offering
of the Securities (before deducting expenses) received by Syratech and the
Guarantors (and, after giving effect to the Recapitalization, the Company and
the Guarantors) bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of Syratech and the Guarantors
(and, after giving effect to the Recapitalization, the Company and the
Guarantors) on the one hand and the Underwriters 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 to state a material fact
relates to information supplied by Syratech (or, after giving effect to the
Recapitalization, the Company), the Guarantors or by the Underwriters and the
party's relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) Syratech (and, after giving effect to the Recapitalization, the
Company), the Guarantors and the Underwriters agree that it would not be just
and equitable if contribution pursuant to Section 9(d) were determined by pro
rata allocation 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
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of Section 9(d), in no event shall any
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
each Underwriter 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to Section 9(d) are several in proportion to the respective aggregate
principal amount of Senior Notes set forth opposite their names in Schedule I
hereto.
SECTION 10. Indemnification of Qualified Independent Underwriter
(a) Each of Syratech and each Guarantor (and, after giving effect to
the Recapitalization, each of the Company and each Guarantor), jointly and
severally, agrees to indemnify and hold harmless the QIU and each person, if
any, who controls the QIU within the meaning of Section 15 of the Act or Section
20 of the Exchange Act from and against any and all losses, claims, damages,
liabilities or judgments (including without limiting the foregoing the
reasonable legal and other expenses incurred in connection with any action, suit
or proceeding or any claim asserted) arising out of: (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
-29-
Statement or the Prospectus or any preliminary prospectus, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities, judgments or
expenses are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to the QIU furnished in
writing to Syratech or any Guarantor by the QIU expressly for use therein; or
(ii) the QIU having acted, failed to act or alleged to have failed to act in its
capacity as the "qualified independent underwriter" with respect to the offer
and sale of the Securities; provided, however, that to the extent that any such
loss, claim, damage, liability or judgment referred to in the foregoing clause
(ii) is found in a final judgment by a court of competent jurisdiction, not
subject to further appeal, to have resulted from the willful misconduct or gross
negligence of the QIU, neither Syratech (or, after giving effect to the
Recapitalization, the Company) nor the Guarantors will be liable to that extent.
This indemnity agreement will be in addition to any liability which Syratech and
the Guarantors (and, after giving effect to the Merger, the Company and the
Guarantors) may otherwise have to the persons referred to above in Section 9(a)
and this Section 10(a).
(b) In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought against the QIU or any
person controlling the QIU (for purposes of this Section 10(b), the QIU and/or
such controlling person, as appropriate, shall hereinafter be referred to as the
"Indemnified"), based upon (i) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if Syratech and the Guarantors (or, after giving effect
to the Recapitalization, the Company and the Guarantors) shall have furnished
any amendments or supplements thereto) or any preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
but only with reference to information relating to the QIU furnished to Syratech
or any Guarantor (or, after giving effect to the Merger, the Company or any
Guarantor) in writing by the QIU expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus or (ii) the QIU having acted, failed to act or alleged to
have failed to act in its capacity as the "qualified independent underwriter"
with respect to the offer and sale of the Securities, and with respect to which
indemnity may be sought against the Syratech (or, after giving effect to the
Recapitalization, the Company) and the Guarantors (each of Syratech, the Company
and/or any Guarantor, as appropriate, for purposes of this Section 10(b), are
hereinafter referred to as the "Indemnifier"), the QIU shall promptly notify
Syratech (or, after giving effect to the Recapitalization, the Company) in
writing and Syratech (or, after giving effect to the Recapitalization, the
Company) and the Guarantors shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnified to represent
the Indemnified and any others the Indemnifier may designate and shall pay the
fees and disbursements of such counsel related to such proceeding. In any such
action or proceeding, the Indemnified shall have the right to retain its own
counsel, but the fees
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and expenses of such counsel shall be at the expense of the Indemnified unless
(i) the Indemnifier and the Indemnified shall have mutually agreed to the
retention of such counsel, (ii) the Indemnifier shall have failed to assume the
defense and employ counsel or (iii) the named parties to any such proceeding
(including any impleaded parties) include both an Indemnifier and the
Indemnified and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests among them. It is
understood that the Indemnifier shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for (a) the reasonable
fees and expenses of more than one separate firm (in addition to local counsel)
for the QIU and all persons, if any, who control the QIU within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act and (b) the
reasonable fees and expenses of more than one separate firm (in addition to
local counsel) for Syratech and the Guarantors (or, after giving effect to the
Recapitalization, the Company and the Guarantors), their respective directors,
their respective officers who sign the Registration Statement and each person,
if any, who controls Syratech and the Guarantors (or, after giving effect to the
Recapitalization, the Company and the Guarantors) within the meaning of either
such Section and that all such fees and expenses shall be reimbursed as they are
incurred. In the case of any such separate firm for the QIU and such control
persons of the QIU, such firm shall be designated in writing by the QIU. In the
case of any such separate firm for Syratech and the Guarantors (or, after giving
effect to the Recapitalization, the Company and the Guarantors), and such
directors, officers and control persons of Syratech and the Guarantors (or,
after giving effect to the Recapitalization, the Company and the Guarantors),
such firm shall be designated in writing by Syratech (or, after giving effect to
the Recapitalization, the Company). The Indemnifier shall not be liable for any
settlement of any proceeding effected without its written consent; but if
settled with such consent of if there be a final judgment for the plaintiff, the
Indemnifier agrees to indemnify the Indemnified from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
immediately preceding sentence, if in any case where the fees and expenses of
counsel are at the expense of the Indemnifier and the Indemnified shall have
requested the Indemnifier to reimburse the Indemnified for such fees and
expenses of counsel as incurred, the Indemnifier agrees that it shall be liable
for any settlement of any action effected without its written consent if (i)
such settlement is entered into more than twenty business days after the receipt
by the Indemnifier of the aforesaid request and (ii) such Indemnifier shall have
failed to reimburse the Indemnified in accordance with such request for
reimbursement prior to the date of such settlement. No Indemnifier shall,
without the prior written consent of the Indemnified, effect any settlement of
any pending or threatened proceeding in respect of which the Indemnified is or
could have been a party and indemnity could have been sought hereunder by the
Indemnified, unless such settlement includes an unconditional release of the
Indemnified from all liability on claims that are the subject matter of such
proceeding.
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(c) If the indemnification provided for in this Section 10 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments 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 losses, claims,
damages, liabilities, judgments and expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by Syratech and the
Guarantors (and, after giving effect to the Recapitalization, the Company and
the Guarantors) on the one hand and the QIU on the other hand from the offering
of the Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of Syratech and the Guarantors (and, after giving effect to the
Recapitalization, the Company and the Guarantors) on the one hand and the QIU on
the other hand in connection with the statements or omissions or actions or
failure to act which resulted in such losses, claims, damages, liabilities,
judgments or expenses, as well as any other relevant equitable considerations.
The relative benefits received by Syratech and the Guarantors (or, after giving
effect to the Recapitalization, the Company and the Guarantors) on the one hand
and the QIU on the other hand shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Securities (before deducting
expenses) received by Syratech and the Guarantors (and, after giving effect to
the Recapitalization, the Company and the Guarantors), as set forth in the cover
page of the Prospectus, bear to the fee received by the QIU for acting as the
"qualified independent underwriter" as set forth in Section 4 hereof. The
relative fault of Syratech and the Guarantors (and, after giving effect to the
Recapitalization, the Company and the Guarantors) on the one hand and the QIU on
the other hand shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission to
state a material fact relates to information supplied by Syratech (or, after
giving effect to the Recapitalization, the Company) or any Guarantor on the one
hand or the QIU on the other hand and the party's relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission and whether the QIU's recommendation, advice or services as QIU
pursuant to Section 4 hereof involved any willful misconduct or gross negligence
on the part of the QIU.
(d) Syratech (and, after giving effect to the Recapitalization, the
Company), the Guarantors and the QIU agree that it would not be just and
equitable if contribution pursuant to Section 10(a) were determined by pro rata
allocation 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 losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 10, the QIU shall not be required
to contribute any amount in excess of the amount by which its fee received for
acting as "qualified independent
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underwriter" as set forth in Section 4 hereof exceeds the amount of any damages
which the QIU has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission or by reason of alleged
willful misconduct or gross negligence. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of Syratech, the Guarantors
and THLI submitted pursuant hereto, including indemnity and contribution
agreements, shall remain operative and in full force and effect, regardless of
any termination of this Agreement, or any investigation made by or on behalf of
any Underwriter or any person controlling any Underwriter by or on behalf of
Syratech (or, after giving effect to the Recapitalization, the Company), any
Guarantor, their respective officers or directors, and shall survive acceptance
and payment for the Securities hereunder.
SECTION 12. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon later of (x) execution and delivery hereof by the
parties hereto and (y) release of notification of the effectiveness of the
Registration Statement by the Commission.
This Agreement may be terminated for any reason at any time prior to
the Closing Date by the Underwriters upon the giving of written notice of such
termination to the Syratech, if prior to the Closing Date (i) there has been,
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition, financial or otherwise,
earnings, business affairs or business prospects of Syratech and its
subsidiaries (or, after giving effect to the Recapitalization, the Company and
its subsidiaries) considered as a whole, whether or not arising in the ordinary
course of business, or (ii) there has occurred any outbreak or escalation of
hostilities or other calamity or crisis or material change in existing
financial, political, economic or securities market conditions, the effect of
which is such as to make it, in the judgment of the Underwriters, impracticable
or inadvisable to market the Securities in the manner contemplated in the
Prospectus or enforce contracts for the sale of the Securities, or (iii) trading
generally on either the American Stock Exchange, the New York Stock Exchange or
the NASDAQ National Market System has been suspended, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices for securities
have been required, by either of said exchanges or the NASDAQ National Market
System or by order of the Commission or any other governmental authority, of if
a banking moratorium has been declared by either Federal or New York
authorities. In the event of any such termination, the provisions of Section 8,
the indemnity agreement and contribution provisions set forth in Sections 9 and
10, and the provisions of Sections 11 and 15 shall remain in effect.
SECTION 13. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any
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standard form of telecommunications. Notice to the Underwriters shall be
directed to you c/o NationsBanc Capital Markets, Inc., 100 North Tryon Street,
Charlotte, North Carolina 28255, Attention: Syndicate; notices to Syratech (and,
after giving effect to the Recapitalization, the Company) or any Guarantor shall
be directed to such party at Syratech Corporation, 175 McClellan Highway, East
Boston, MA 02128, Attention: Secretary (with a copy to the Treasurer).
SECTION 14. Parties. This Agreement shall inure to the benefit of and
be binding upon Syratech (and, after giving effect to the Recapitalization, the
Company), the Guarantors, the Underwriters, the QIU any controlling persons
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Securities from any Underwriter shall be deemed to be
a successor by reason merely of such purchase.
SECTION 15. Governing Law. This Agreement shall be governed by the laws
of the State of New York.
This Agreement may be signed in two or more counterparts each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign this Agreement and return it to us.
Very truly yours,
SYRATECH CORPORATION
By:
Name: _________________
Title: _________________
SYRATECH HOLDING CORPORATION
By:
Name: _________________
Title: _________________
WALLACE INTERNATIONAL SILVERSMITHS, INC.
By:
Name: _________________
Title: __________________
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WALLACE INTERNATIONAL DE P.R., INC.
By:
Name: ____________________
Title: ____________________
INTERNATIONAL SILVER COMPANY
By:
Name: _________________
Title: _________________
INTERNATIONAL SILVER DE P.R., INC.
By:
Name: _________________
Title: __________________
PMW SILVER DE P.R., INC.
By:
Name: ____________________
Title: ____________________
TOWLE MANUFACTURING COMPANY
By:
Name: _________________
Title: _________________
ROSEMAR SILVER COMPANY, INC.
By:
Name: _________________
Title: __________________
TOWLE HOLLOWARE, INC.
By:
Name: ____________________
Title: ____________________
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FARBERWARE INC.
By:
Name: _________________
Title: _________________
SILVESTRI, INC.
By:
Name: _________________
Title: __________________
SILVESTRI, INC. OF SOUTH CAROLINA
By:
Name: ____________________
Title: ____________________
RAUCH INDUSTRIES, INC.
By:
Name: _________________
Title: __________________
ROCHARD, INC.
By:
Name: ____________________
Title: ____________________
HOLIDAY PRODUCTS, INC.
By:
Name: _________________
Title: _________________
NORTHSTAR SALES CORPORATION
By:
Name: _________________
Title: __________________
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LEONARD FLORENCE ASSOCIATES, INC.
By:
Name: ____________________
Title: ____________________
CHI INTERNATIONAL, INC.
By:
Name: _________________
Title: _________________
SYRATECH SECURITY CORPORATION
By:
Name: _________________
Title: __________________
SYRATECH WEST COAST WAREHOUSE CORP.
By:
Name: ____________________
Title: ____________________
175 AMLEGION REVERE REALTY TRUST
By:
Name: ____________________
Title: ____________________
SYRATECH SILVER SALES CORP.
By:
Name: ____________________
Title: ____________________
THL TRANSACTION I CORP.
By:
Name: ____________________
Title: ____________________
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Confirmed and Accepted, as of the date first above written:
NATIONSBANC CAPITAL MARKETS, INC.
By ______________________________
By _______________________________
CHASE SECURITIES INC.
By _______________________________
By ________________________________
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SCHEDULE I
PRINCIPAL AMOUNT
OF SENIOR NOTES
UNDERWRITER TO BE PURCHASED
- ----------- ---------------
NationsBanc Capital Markets, Inc. $
Chase Securities Inc.
------------
Total $155,000,000
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SCHEDULE II
GUARANTORS
NAME OF GUARANTOR STATE OF INCORPORATION
- ----------------- ----------------------
Syratech Holding Corporation Arkansas
Wallace International Silversmiths, Inc. Delaware
Wallace International de P.R., Inc. Delaware
International Silver Company Delaware
International Silver de P.R., Inc. Delaware
PMW Silver de P.R., Inc. Delaware
Towle Manufacturing Company Delaware
Rosemar Silver Company, Inc. Delaware
Towle Holloware, Inc. Delaware
Farberware Inc. Delaware
Silvestri, Inc. Delaware
Silvestri, Inc. of South Carolina South Carolina
Rauch Industries, Inc. North Carolina
Rochard, Inc. North Carolina
Holiday Products, Inc. North Carolina
Northstar Sales Corporation North Carolina
Leonard Florence Associates, Inc. Massachusetts
CHI International, Inc. Maryland
Syratech Security Corporation Massachusetts
Syratech West Coast Warehouse Corp. California
175 Amlegion Revere Realty Trust Massachusetts Trust
Syratech Silver Sales Corp. Georgia
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