1
Exhibit 4.2
EXECUTION COPY
WORLDTEX, INC.
$175,000,000
9 5/8% SENIOR NOTES DUE 2007
PURCHASE AGREEMENT
November 20, 1997
NationsBanc Xxxxxxxxxx Securities, Inc.
BancAmerica Xxxxxxxxx Xxxxxxxx
Interstate / Xxxxxxx Lane Corporation
c/o NationsBanc Xxxxxxxxxx Securities, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
Worldtex, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to you (the "Initial Purchasers") $175,000,000 in aggregate
principal amount of its 9 5/8% Senior Notes due 2007 (the "Notes"). The Notes
will be fully and unconditionally guaranteed (the "Guarantees" and, collectively
with the Notes, the "Securities") on a senior unsecured basis, jointly and
severally, by each domestic subsidiary of the Company listed on the signature
page hereto (the "Guarantors"). The Securities are to be issued pursuant to an
indenture, dated as of December 1, 1997 (the "Indenture"), by and among the
Company, the Guarantors and IBJ Xxxxxxxx Bank & Trust Company, as Trustee. As
used in this Agreement, references to the "Issuers" shall mean the Company and
the Guarantors and references to the Company's "subsidiaries" shall mean each of
the subsidiaries listed on Schedule A hereto.
The sale of the Securities to the Initial Purchasers will be made
without registration of the Securities under the Securities Act of 1933, as
amended (the "Securities Act"), in reliance upon exemptions from the
registration requirements of the Securities Act. You have advised the Issuers
that you will offer and sell the Securities purchased by you hereunder in
accordance with Section 3 hereof as soon as you deem advisable.
In connection with the sale of the Securities, the Issuers have
prepared a preliminary offering memorandum, dated October 30, 1997 (the
"Preliminary Memorandum") and a final offering memorandum, dated November 20,
1997 (the "Final Memorandum"). Each of the Preliminary Memorandum and the Final
Memorandum sets forth certain information concerning the Issuers and the
Securities. The Issuers hereby confirm that they have authorized the use of the
Preliminary Memorandum and the Final Memorandum, and any amendment or supplement
thereto furnished to you by the Issuers, in connection with the offer and sale
of the Securities by the Initial Purchasers. Unless stated to the contrary, all
references herein to the Final Memorandum are to the Final Memorandum at the
time of execution and delivery of this Agreement (the "Execution Time") and are
not meant to include any amendment or supplement, or any information
incorporated by reference therein, subsequent to the Execution Time.
The Initial Purchasers and their direct and indirect transferees
will be entitled to the
2
benefits of the Registration Rights Agreement, to be entered into on the Closing
Date (the "Registration Rights Agreement"), pursuant to which the Issuers will
agree to use their best efforts to commence an offer to exchange the Securities
for Exchange Notes (the "Exchange Notes") and Guarantees thereof (together, the
"Exchange Securities") that have been registered under the Securities Act, and
that otherwise are identical in all respects to the Securities, or to cause a
shelf registration statement to become effective under the Securities Act and to
remain effective for the period designated in such Registration Rights
Agreement.
1. Representations and Warranties. The Issuers jointly and severally
represent and warrant to each Initial Purchaser as follows:
(a) The Preliminary Memorandum, at the date thereof, did not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The Final
Memorandum, at the date hereof, does not, and at the Closing Date (as
defined below) will not (and any amendment or supplement thereto, at the
date thereof and at the Closing Date, will not), contain any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however that the Issuers
make no representation or warranty as to the information contained in or
omitted from the Preliminary Memorandum or the Final Memorandum, or any
amendment or supplement thereto, in reliance upon and in conformity with
information furnished in writing to the Issuers by or on behalf of the
Initial Purchasers specifically for inclusion therein.
(b) Neither the Issuers, nor any of their "Affiliates" (as defined
in Rule 501(b) of Regulation D under the Securities Act ("Regulation D")),
nor any person acting on their behalf has, directly or indirectly, made
offers or sales of any security, or solicited offers to buy any security,
under circumstances that would require the registration of the Securities
under the Securities Act, provided, that the Issuers make no
representation in this sentence regarding the Initial Purchasers. Neither
the Issuers, nor any of their Affiliates, nor any person acting on their
behalf has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D) in connection with any
offer or sale of the Securities, provided, that the Issuers make no
representation in this sentence regarding the Initial Purchasers. The
Securities satisfy the eligibility requirements of Rule 144A(d)(3) under
the Securities Act. The Final Memorandum and each amendment or supplement
thereto, as of its date, contains the information specified in Rule
144A(d)(4) under the Act.
(c) None of the Issuers nor any of their respective Affiliates or
any person acting on its or their behalf (other than the Inial Purchasers,
as to whom the Issuers make no representation) has engaged or will engage
in any directed selling efforts within the meaning of Regulation S under
the Securities Act ("Regulation S") with respect to the Securities. The
Securities offered and sold in reliance on Regulation S have been and will
be offered and sold only in offshore transactions. The sale of the
Securities pursuant to Regulation S is not part of a plan or scheme by the
Issuers to evade the registration provisions of the Securities Act. No
registration under the Securities Act of the Securities is required for
the sale of the Securities to the Initial Purchasers as contemplated
hereby or for the Exempt Resales (as defined below) assuming the matters
set forth in clauses (b) through (e) of Section 7(g)(ii) below are
accurate. The Securities sold pursuant to Regulation S will initially be
represented by a temporary global security as required by Rule 903 of
Regulation S.
2
3
(d) Neither the Company nor any of its subsidiaries is, or will be
after giving effect to the offering and sale of the Securities and the
application of the proceeds therefrom as described in the Final
Memorandum, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended (the "Investment Company Act").
(e) Assuming the accuracy of the matters set forth in clauses (b)
through (e) of Section 7(g)(ii) below, (A) registration under the
Securities Act of the Securities or qualification of the Indenture under
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
is not required in connection with the offer and sale of the Securities to
the Initial Purchasers in the manner contemplated by the Final Memorandum
or this Agreement and (B) initial resales of the Securities by the Initial
Purchasers on the terms and in the manner set forth in the Final
Memorandum and Section 3 hereof are exempt from the registration
requirements of the Securities Act.
(f) Since the respective dates as of which information is given in
the Preliminary Memorandum and the Final Memorandum, except as otherwise
stated therein, (i) there has been no material adverse change in the
condition (financial or otherwise), results of operations, affairs or
business prospects of the Company and its subsidiaries considered as a
whole, whether or not arising in the ordinary course of business and (ii)
there have been no material transactions entered into by the Company or
any of its subsidiaries (collectively, a "Material Adverse Change").
(g) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the state of its
incorporation with corporate power and authority to own, lease and operate
its properties and conduct its business as described in the Preliminary
Memorandum and the Final Memorandum; and the Company is duly qualified as
a foreign corporation to transact business and is in good standing in each
jurisdiction 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, singly or in the aggregate, reasonably be
expected to have a material adverse effect on the financial condition,
results of operations, affairs or business prospects of the Company and
its subsidiaries considered as a whole (a "Material Adverse Effect").
(h) All of the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
nonassessable. Attached as Schedule A hereto is a complete and accurate
list of each subsidiary of the Company. 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 Preliminary Memorandum and the
Final Memorandum and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction 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, singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each subsidiary of the Company that is not a Guarantor was
duly organized and is validly existing under the laws of the jurisdiction
of its organization and has the power and authority to own, lease and
operate its properties and conduct its business as described in the
Preliminary and the Final Memorandum. All of the issued and outstanding
capital stock of each Guarantor has been duly authorized and validly
issued and is fully paid and nonassessable, and, except as described in
the Preliminary Memorandum and the Final Memorandum, all shares of capital
stock or other equity interests issued by each subsidiary are owned by the
Company, directly or through subsidiaries, free and clear of any mortgage,
pledge, lien, encumbrance, claim or security interest.
3
4
(i) This Agreement has been duly authorized, executed and delivered
by the Issuers and constitutes the valid and binding agreement of the
Issuers, enforceable against the Issuers in accordance with its terms,
except that (i) enforcement thereof may be subject to (A) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and (B) general principles of equity
(regardless of whether enforceability is considered in a proceeding in
equity or at law) and (ii) the enforceability of any indemnification or
contribution provisions thereof may be limited under applicable securities
laws or the public policies underlying such laws.
(j) The Notes have been duly authorized by the Company, and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Initial Purchasers in
accordance with this Agreement, will constitute the valid and binding
obligations of the Company enforceable against the Company in accordance
with their terms, and will be entitled to the benefits of the Indenture,
except that enforcement thereof may be subject to (A) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and (B) general principles of equity
(regardless of whether enforceability is considered in a proceeding in
equity or at law).
(k) The Guarantees endorsed on the Notes have been duly authorized
by each Guarantor and, when the Notes are executed and authenticated in
accordance with the provisions of the Indenture and delivered to the
Initial Purchasers in accordance with this Agreement, the Guarantees will
constitute the valid and binding obligation of the Guarantors enforceable
against the Guarantors in accordance with their terms and will be entitled
to the benefits of the Indenture except that enforcement thereof may be
subject to (A) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally and (B)
general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
(l) The Indenture has been duly authorized by the Issuers. When the
Securities are delivered and paid for pursuant to this Agreement on the
Closing Date, the Indenture will have been duly executed and delivered by
the Issuers and, assuming the due execution and delivery thereof by the
Trustee, will constitute a valid and binding agreement of the Issuers,
enforceable against the Issuers in accordance with its terms, except that
enforcement thereof may be subject to (A) bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
now or hereafter in effect relating to or affecting creditors' rights
generally and (B) general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
(m) The Exchange Securities have been duly authorized and, when duly
executed, authenticated, issued and delivered, will be validly issued and
outstanding, and will constitute the valid and binding obligations of the
Issuers, entitled to the benefits of the Indenture and enforceable against
the Issuers in accordance with their terms except that enforcement thereof
may be subject to (A) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally and (B)
general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
(n) The Registration Rights Agreement has been duly authorized by
the Company
4
5
and the Guarantors and, when duly executed and delivered by the Issuers
(assuming the due execution and delivery by the Initial Purchasers), will
constitute a valid and binding agreement of the Issuers, enforceable
against the Issuers in accordance with its terms except that (i)
enforcement thereof may be subject to (A) bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
now or hereafter in effect relating to or affecting creditors' rights
generally and (B) general principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law) and (ii)
the enforceability of any indemnification or contribution provisions
thereof may be limited under applicable securities laws or the public
policies underlying such laws.
(o) On the Closing Date, the New Credit Facility (as defined in the
Final Memorandum) and the guarantee of the obligations thereunder by the
Guarantors (a) shall have been duly authorized, executed and delivered by
the Company and the Guarantors, respectively, and will constitute the
valid and binding agreement of the Company and the Guarantors,
respectively, enforceable against the Company and the Guarantors, as
applicable, in accordance with their terms except that (i) enforcement
thereof may be subject to (A) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights generally
and (B) general principles of equity (regardless of whether enforceability
is considered in a proceeding in equity or at law) and (ii) the
enforceability of any indemnification or contribution provisions thereof
may be limited under applicable securities laws or public policies; and
(b) shall be in full force and effect. On the Closing Date, no event of
default or event which, with the giving of notice or passage of time or
both, would constitute an event of default shall have occurred under the
New Credit Facility or the guarantees thereof by the Guarantors and all
conditions to the extension of credit thereunder still have been satisfied
without waiver.
(p) The Asset Purchase Agreement, dated October 29, 1997, among the
Company, Elastic Corporation of America, Inc. ("Buyer") and NFA Corp. (the
"Acquisition Agreement"), pursuant to which Buyer will purchase
substantially all of the assets of the Elastic Corporation of America
division of NFA Corp. ("ECA"), has been duly authorized, executed and
delivered by the Company and Buyer and constitutes the valid and binding
agreement of the Company and Buyer enforceable against the Company and
Buyer in accordance with its terms except as (i) enforcement thereof may
be subject to (A) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally and (B)
general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law). The Acquisition Agreement
is in full force and effect and there exists no breach by any of the
Issuers (to the extent that each is a party thereto) or, to the knowledge
of the Issuers, any other party of any representation or covenant
thereunder and no facts have come to the attention of the Issuers (to the
extent that each is a party thereto) that have led such Issuers to believe
that the conditions to the consummation of the transactions contemplated
thereby will not be satisfied in accordance with the terms thereof.
(q) The execution, delivery and performance of this Agreement, the
Indenture, the Registration Rights Agreement, the Acquisition Agreement
and the New Credit Facility (as defined in the Final Memorandum) by the
Issuers (to the extent each is a party thereto), and the consummation of
the transactions contemplated hereby and thereby will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
or credit agreement or other agreement or instrument to which either the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the properties or
assets of the Company or any of its
5
6
subsidiaries are subject (so long as the 7.5% Senior Notes due 2004 of the
Company are repaid and the Note Agreements relating thereto are terminated
as of the Closing), nor will such actions result in any violation of the
provisions of the charter or by-laws of the Company or any of its
subsidiaries or any statute to which they may be subject or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties or assets (except to the extent any such conflict, breach,
violation or default singly or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect); and except for such consents,
approvals, authorizations, registrations or qualifications as may be
required under applicable state securities and Blue Sky laws in connection
with the purchase and distribution of the Securities by the Initial
Purchasers or as set forth in the Registration Rights Agreement, the
Acquisition Agreement or the New Credit Facility, no consent, approval,
authorization or order of, or filing or registration with, any such court
or governmental agency or body is required for the execution, delivery and
performance of this Agreement, the Indenture, the Registration Rights
Agreement, the Acquisition Agreement and the New Credit Facility by the
Issuers (to the extent each is a party thereto), the consummation of the
transactions contemplated hereby and thereby, and the issuance and sale of
the Notes and Exchange Securities by the Issuers.
(r) Neither the Company nor any of its subsidiaries is in breach or
violation of any of the terms or provisions of any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the properties or
assets of the Company or any of its subsidiaries are subject, nor is the
Company or any of its subsidiaries in violation of the provisions of its
respective charter or by-laws or any statute or any judgment, order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company, any of its subsidiaries or any of their
properties or assets (except to the extent any such conflict, breach,
violation or default is cured at or prior to the Closing Date and within
the grace period applicable thereto or would not, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect).
(s) As of the Closing Date, the Securities and the Indenture will
conform in all material respects to the descriptions thereof contained in
the Final Memorandum. As of the Closing Date, the provisions of the
Registration Rights Agreement, the Acquisition Agreement and the New
Credit Facility (as defined in the Final Memorandum), to the extent that
such provisions are summarized in the Final Memorandum, will conform in
all material respects to the descriptions thereof contained in the Final
Memorandum.
(t) Except as set forth in the Registration Rights Agreement, there
are no contracts, agreements or understandings between the Company or any
of its subsidiaries and any person granting such person the right to
require the Company or any of its subsidiaries to file a registration
statement under the Securities Act with respect to any securities owned or
to be owned by such person or to require the Company or any of its
subsidiaries to include such securities in any securities being registered
pursuant to any registration statement filed by the Company or any of its
subsidiaries under the Securities Act.
(u) Except as set forth in the Preliminary Memorandum and the Final
Memorandum, there is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, now pending or, to
the knowledge of the Issuers, threatened against or affecting the Company
or any of its subsidiaries, which would, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect or materially and
adversely affect the
6
7
offering of the Securities.
(v) The Company and each of its subsidiaries has good and
indefeasible title in fee simple to all real property and good and
indefeasible title to all personal property owned by it and necessary in
the conduct of the business of the Company or such subsidiary, in each
case free and clear of all liens, encumbrances and defects except (i) such
as are referred to in the Final Memorandum or (ii) such as do not
materially and adversely affect the value of such property to the Company
or such subsidiary, and do not interfere with the use made and proposed to
be made of such property by the Company or such subsidiary to an extent
that such interference would, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect. All leases to which the
Company or its subsidiaries is a party are valid and binding, and no
default has occurred or is continuing thereunder which could, singly or in
the aggregate, reasonably be expected to have a Material Adverse Effect or
materially and adversely affect the offering of the Securities, and the
Company and its subsidiaries enjoy peaceful and undisturbed possession
under all such leases to which any of them is a party as lessee (with such
exceptions as do not materially interfere with the use made by the Company
or such subsidiary or which would not, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect). The Company and
its subsidiaries possess adequate certificates, authorizations or permits
issued by the appropriate state, federal or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them, and except
as set forth in the Final Memorandum, neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
which, singly or in the aggregate, would, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(w) Each of KPMG Peat Marwick LLP, who have certified certain
financial statements of the Company and its subsidiaries, and Deloitte &
Touche LLP, who have certified certain financial statements of ECA, are
independent public accountants within the meaning of the Securities Act
and the rules and regulations thereunder. The financial statements
included in the Preliminary Memorandum and the Final Memorandum present
fairly in all material respects the consolidated financial position of (i)
the Company and its subsidiaries, on a consolidated basis, and (ii) ECA,
in each case as at the dates indicated and the results of their respective
operations and the changes in their consolidated financial position for
the periods specified, subject, in the case of the interim period
financial statements, to normal year-end adjustments; said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis during the periods
involved, except as indicated therein and except in the case of interim
financial statements for the absence of certain footnotes required by such
accounting principles, and comply as to form in all material respects with
the requirements applicable to such financial statements included in
registration statements under the Securities Act.
The pro forma financial statements included in the Preliminary
Memorandum and the Final Memorandum have been prepared on a basis
consistent with the historical financial statements of the Company and its
subsidiaries and give effect to assumption used in the preparation thereof
on a reasonable basis and in good faith and present fairly the historical
and proposed transactions contemplated by the Preliminary Memorandum and
the Final Memorandum; and such pro forma financial statements comply as to
form in all material respects with the requirements applicable to pro
forma financial statements included in registration statements on Form S-1
under the Act. The other pro forma financial and statistical information
and data included in the Preliminary Memorandum and the Final Memorandum
are, in all material respects, accurately presented and prepared on a
basis consistent with the pro forma
7
8
financial statements.
The historical and pro forma financial statements included in
the Preliminary Memorandum and the Final Memorandum include all of the
financial statements that would be required to be included in a
registration statement on Form S-1 under the Securities Act.
(x) Neither the Company nor any of its subsidiaries is now or, after
giving effect to the issuance of the Securities, and the application of
the proceeds thereof, will be (i) insolvent, (ii) left with unreasonably
small capital with which to engage in its anticipated businesses or (iii)
incurring debts beyond its ability to pay such debts as they become due.
(y) Except as would not reasonably be expected to have a Material
Adverse Effect, the Company and its subsidiaries own, or otherwise possess
the right to use, all patents, trademarks, service marks, trade names and
copyrights, all applications and registrations for each of the foregoing,
and all other proprietary rights and confidential information used in the
conduct of their respective businesses as currently conducted; and neither
the Company nor any of its subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with the rights of any
third party with respect to any of the foregoing which, singly or in the
aggregate, would reasonably be expected to have a Material Adverse Effect.
(z) The Company and its subsidiaries are (i) in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the terms
and conditions of such permits, licenses or approvals would not, singly or
in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(aa) No labor problem or disturbance with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of the
Issuers, is threatened which, singly or in the aggregate, would reasonably
be expected to have a Material Adverse Effect.
(ab) Neither the Company nor any of its subsidiaries, nor, to any
Issuers' knowledge, any director, officer, agent, employee, stockholder or
other person, in any such case, acting on behalf of the Company or any of
its subsidiaries, has used any corporate funds during the last five years
for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; made any unlawful payment to any
foreign or domestic government official or employee from corporate funds;
violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977, as amended; or made any bribe, payoff, influence
payment, kickback or other payment that is unlawful, except in the case of
any of the foregoing where such action or activity would not have a
Material Adverse Effect.
(ac) Neither the Company nor any of its subsidiaries has taken, and
none of them will take, any action that would cause this Agreement or the
issuance or sale of the Securities and Exchange Securities to violate
Regulation G, T, U or X of the Board of Governors of the Federal Reserve
System or analogous foreign laws and regulations.
8
9
(ad) Other than as set forth on Schedule B hereto or as filed by the
Company as an exhibit to its Annual Report on Form 10-K for 1996 or any
subsequently filed Quarterly Report on Form 10-Q, neither the Company nor
any subsidiary is a party to any contract or agreement that would be
required to be filed with the Commission as an exhibit to a registration
statement on Form S-1 pursuant to entries (2), (4) and (10) of the Exhibit
Table of Item 601 of Regulation S-K under the Securities Act.
(ae) No Issuer or Affiliate of any Issuer has sold, offered for sale
or solicited offers to buy or otherwise negotiated in respect of any
security (as defined in the Securities Act) in a transaction would require
the registration under the Securities Act of the Securities.
(af) Neither the Company nor any subsidiary is a "public utility" or
a "holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
2. Purchase and Sale. On the basis of the representations and
warranties contained in, and subject to the terms and conditions of, this
Agreement, the Issuers agree to sell to the Initial Purchasers and each of the
Initial Purchasers agrees to purchase the aggregate principal amount of
Securities set forth opposite its name as shown in Schedule C hereto, at a
purchase price equal to 97.125% of the principal amount thereof, plus accrued
interest, if any, from December 1, 1997. The Initial Purchasers shall pay the
Company in an amount equal to $968,750 for certain costs and expenses in
connection with the offering of the Securities and Exchange Securities.
The Issuers shall not be obligated to deliver any of the Securities
to be delivered except upon payment for all the Securities to be purchased as
provided herein.
3. Sale and Resale of the Securities by the Initial Purchaser. Each
of the Initial Purchasers represents and warrants to the Issuers that:
(a) It will offer the Securities to be purchased hereunder for
resale only upon the terms and conditions set forth in this Agreement and
in the Final Memorandum.
(b) It (i) will not solicit offers for, or offer or sell, the
Securities by means of any form of general solicitation or general
advertising within the meaning of Regulation D or in any manner involving
a public offering within the meaning of Section 4(2) of the Securities
Act, and (ii) will solicit offers for the Securities only from, and will
offer, sell or deliver (the "Exempt Resales") the Securities, as part of
its distribution thereof, only to the following persons (each an "Eligible
Purchaser") (A) persons whom such Initial Purchaser and any person acting
on behalf of such Initial Purchaser reasonably believe to be qualified
institutional buyers ("QIBs") as defined in Rule 144A under the Securities
Act, as such rule may be amended from time to time ("Rule 144A") and, if
any such person is buying for one or more institutional accounts for which
such person is acting as fiduciary or agent, only when such person has
represented to such Initial Purchaser that each such account is a QIB, in
each case, to whom notice has been given that such sale or delivery is
being made in reliance on Rule 144A, (B) to a limited number of
institutional accredited investors as defined in Rule 501(a) (1), (2), (3)
or (7) under Regulation D ("Accredited Investors") that, prior to their
purchase of the Securities, executes and delivers a letter containing
certain representations and agreements in the form attached as Annex A to
the Final Memorandum and (C) outside the United States in offshore
transactions in reliance on Regulation S.
(c) With respect to Securities sold in reliance on Regulation S, (i)
neither such Initial
9
10
Purchaser nor any of its affiliates nor anyone acting on its behalf has
offered or sold, or will offer or sell, any Securities by means of any
directed selling efforts (as defined in Rule 902 of Regulation S) in the
United States, (ii) all offers and sales of the Securities prior to the
expiration of 40 days after the later of the date of commencement of the
offering of Securities and the Closing Date (as defined below) (the
"restricted period") shall be made only in accordance with the provisions
of Rules 903 or 904 under Regulation S, pursuant to registration of the
Securities under the Securities Act or pursuant to an available exemption
from the registration requirements of the Securities Act and (iii) at or
prior to confirmation of all sales of Securities made in reliance on
Regulation S, it will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases
the Securities from it during the restricted period a confirmation or
notice to substantially the following effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered or sold within the United States or to, or for the account
or benefit of, U.S. persons (i) as part of a distribution thereof at
any time or (ii) otherwise until 40 days after the later of the date
of the commencement of the offering and the closing date, except in
either case in accordance with an exemption from or in a transaction
not subject to the Securities Act. Terms used above have the
meanings given them by Regulation S."
The sale of the Securities to non-U.S. persons in offshore transactions is
not part of a plan or scheme to avoid the registration requirements of the
Securities Act. Terms defined for purposes of Regulation S and used in
this subsection (c) have such respective defined meanings.
(d) (i) It has not solicited, and will not solicit, offers to
purchase any of the Securities from, (ii) it has not sold, and will not
sell, any of the Securities to, and (iii) it has not distributed, and will
not distribute, the Preliminary Memorandum or the Final Memorandum to, any
person or entity in any jurisdiction outside of the United States except,
in each case, in compliance in all material respects with all applicable
laws of such jurisdiction. For purposes of this Agreement, "United States"
means the United States of America, its territories, its possessions
(including the Commonwealth of Puerto Rico), and other areas subject to
its jurisdiction.
(e) Unless prohibited by applicable law, (i) it will furnish to each
person to whom it offers any Securities, a copy of the Preliminary
Memorandum or Final Memorandum or (unless delivery of such Preliminary
Memorandum is required by applicable law) shall inform each such person
that a copy of such Preliminary Memorandum or the Final Memorandum will be
available upon request and (ii) it will furnish to each person to whom it
sells Securities a copy of the Final Memorandum (as then amended or
supplemented by applicable law) and shall inform each such person that a
copy of such Final Memorandum will be available upon request.
(f) It and each of its affiliates has not entered and will not enter
into any contractual arrangement with any distributor (as that term is
defined for purposes of Regulation S) with respect to the distribution of
the Securities except for any such arrangements with the other Initial
Purchasers or affiliates of the other Initial Purchasers or with the prior
written consent of the Company.
(g) It is an "accredited investor" within the meaning of Regulation
D.
4. Delivery of and Payment for the Notes. Delivery of and payment
for the
10
11
Securities (the "Closing") shall be made at the office of Xxxxxx Xxxxxxx & Xxxx
LLP, Xxx Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx at 9:00 A.M., New York City
time, on December 1, 1997, or at such other date or place as shall be determined
by agreement between the Initial Purchasers and the Company. This date and time
are sometimes referred to as the "Closing Date." On the Closing Date, the
Issuers shall deliver or cause to be delivered the Securities to the Initial
Purchasers for the account of the Initial Purchasers against payment to or upon
the order of the Company of the purchase price by wire transfer in federal
(same-day) funds. Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the
obligation of the Initial Purchasers hereunder. Upon delivery, the Securities
shall be in definitive fully registered form and registered in the name of Cede
& Co., as nominee of the Depositary Trust Company ("DTC"), or such other name or
names and in such denominations as the Initial Purchasers shall request in
writing not less than one business day prior to the Closing Date. For the
purpose of expediting the checking and packaging of the Securities, the Issuers
shall make the Securities available for inspection by the Initial Purchasers in
New York, New York, not later than 2:00 P.M., New York City time, on the
business day prior to the Closing Date.
5. Further Agreements of the Issuers. The Issuers jointly and
severally agree with each Initial Purchaser as set forth below in this Section
5:
(a) The Issuers will furnish to the Initial Purchasers,
without charge, as many copies of the Final Memorandum and any supplements
and amendments thereto as they may reasonably request.
(b) Prior to making any amendment or supplement to the
Preliminary Memorandum or the Final Memorandum, the Issuers shall furnish
a copy thereof to the Initial Purchasers and counsel to the Initial
Purchasers and will not effect any such amendment or supplement to which
the Initial Purchasers shall reasonably object by notice to the Company
after a reasonable period of review.
(c) If, at any time prior to completion of the distribution of
the Securities by the Initial Purchasers, any event shall occur or
condition exist as a result of which it is necessary, in the opinion of
counsel for the Initial Purchasers or counsel for the Issuers, to amend or
supplement the Final Memorandum in order that the Final Memorandum will
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading in light of the circumstances existing at the time it is
delivered to a purchaser, or if it is necessary to amend or supplement the
Final Memorandum to comply with applicable law, the Issuers will promptly
prepare such amendment or supplement as may be necessary to correct such
untrue statement or omission or so that the Final Memorandum, as so
amended or supplemented, will comply with applicable law and furnish to
the Initial Purchasers such number of copies of such amendment or
supplement as they may reasonably request.
(d) So long as any Securities are outstanding and are
"Restricted Securities" within the meaning of Rule 144(a)(3) under the
Securities Act and during any period in which the Issuers are not subject
to Section 13 or 15(d) of the Exchange Act of 1934, as amended (the
"Exchange Act"), the Issuers will furnish to holders of the Securities and
prospective purchasers of Securities designated by such holders, upon
request of such holders or such prospective purchasers, the information,
if any, required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
(e) So long as the Securities and Exchange Securities are
outstanding, the Issuers will furnish to the Initial Purchasers copies of
any annual reports, quarterly reports and
11
12
current reports filed with the Securities and Exchange Commission ("SEC")
on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be
designated by the SEC, and such other documents, reports and information
as shall be furnished by the Issuers to the Trustee or to the holders of
the Securities and Exchange Securities pursuant to the Indenture.
(f) The Issuers will use their best efforts to qualify the
Securities for sale under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers reasonably designate and to
continue such qualifications in effect so long as reasonably required for
the distribution of the Securities. The Issuers will also arrange for the
determination of the eligibility for investment of the Securities under
the laws of such jurisdictions as the Initial Purchasers reasonably
request. Notwithstanding the foregoing, the Issuers shall not be obligated
to qualify as a foreign corporation in any jurisdiction in which they are
not so qualified or to file a general consent to service of process or to
subject themself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise subject.
(g) The Issuers will use their best efforts to permit the
Securities to be designated PORTAL securities in accordance with the rules
and regulations adopted by the National Association of Securities Dealers,
Inc. relating to trading in the PORTAL market and to permit the Securities
to be eligible for clearance and settlement through DTC.
(h) Except following the effectiveness of any Registration
Statement (as defined in the Registration Rights Agreement) and except for
such offers as may be made as a result of, or subsequent to, filing such
Registration Statement or amendments thereto prior to the effectiveness
thereof, the Issuers will not, and will cause their Affiliates not to,
solicit any offer to buy or offer to sell the Securities by means of any
form of general solicitation or general advertising (as those terms are
used in Regulation D under the Securities Act) or in any manner involving
a public offering within the meaning of Section 4(2) of the Securities
Act.
(i) The Company will consummate the transactions contemplated
by the Acquisition Agreement in accordance with the terms thereof but
subject to the satisfaction of the conditions thereof, and apply the net
proceeds from the sale of the Securities, in each case, as set forth in
the Final Memorandum.
(j) The Issuers will take such steps as shall be necessary to
ensure that neither the Company nor any of its subsidiaries shall become
(i) an "investment company" within the meaning of the Investment Company
Act, or (ii) a "holding company" or a "subsidiary company" or an
"affiliate" of a holding company within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
(k) The Company and its subsidiaries will not, and will cause
their affiliates not to, take any action that would require the
registration under the Securities Act of the Securities (other than
pursuant to the Registration Rights Agreement) including, without
limitation, (i) engaging in any directed selling efforts (within the
meaning of Regulation S) during any applicable restricted period or (ii)
offering any other securities in a manner that would be integrated with
the transactions contemplated hereby and thereby require such
registration.
(l) Prior to the consummation of the Exchange Offer or the
effectiveness of an applicable shelf registration statement if, in the
reasonable judgment of the Initial Purchasers, the Initial Purchasers or
any of their affiliates are required to deliver an offering memorandum in
connection with sales of, or market-making activities with respect to, the
Securities, (A) the
12
13
Issuers will periodically amend or supplement the Final Memorandum so that
the information contained in the Final Memorandum complies with the
requirements of Rule 144A of the Securities Act, (B) the Issuers will
amend or supplement the Final Memorandum when necessary to reflect any
material changes in the information provided therein so that the Final
Memorandum will not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances existing as of the date the Final
Memorandum is so delivered, not misleading and (C) the Issuers will
provide the Initial Purchasers with copies of each such amended or
supplemented Final Memorandum, as the Initial Purchasers may reasonably
request.
The Issuers hereby expressly acknowledge that the indemnification
and contribution provisions of Section 8 hereof are specifically
applicable and relate to each offering memorandum, registration statement,
prospectus, amendment or supplement referred to in this Section 5(l).
(m) The Issuers will do all things reasonably necessary to
satisfy the closing conditions set forth in Section 7 hereof.
6. Expenses. The Issuers, jointly and severally, agree to pay (other
than any transfer taxes and fees and disbursements of counsel for the Initial
Purchasers, except as set forth under Section 9 below and clause (d) of this
Section) (a) the costs incident to the authorization, issuance, sale and
delivery of the Securities and Exchange Securities and any issue or stamp taxes
payable in that connection; (b) the costs incident to the preparation and
printing of the Preliminary Memorandum, the Final Memorandum and any amendments,
supplements and exhibits thereto; (c) the costs of distributing the Preliminary
Memorandum, the Final Memorandum and any amendment or supplement thereto; (d)
the fees and expenses of qualifying the Securities and Exchange Securities under
the securities laws of the several jurisdictions as provided in Section 5(f) and
of preparing, printing and distributing a Blue Sky Memorandum (including
reasonable related fees and expenses of counsel to the Initial Purchasers); (e)
the cost of printing the Securities and the Exchange Securities; (f) the fees
and expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of any counsel for the Trustee in connection with the Indenture
and the Securities and Exchange Securities; (g) any fees paid to rating agencies
in connection with the rating of the Securities and Exchange Securities; (h) the
costs and expenses of DTC and its nominee, including its book-entry system; (i)
all expenses and listing fees incurred in connection with the application for
quotation of the Securities on the PORTAL market; and (j) all other costs and
expenses incident to the performance of the obligations of the Issuers under
this Agreement.
7. Conditions of Initial Purchaser's Obligations. The obligations of
the Initial Purchasers to purchase the Securities shall be subject to the
accuracy of the representations and warranties on the part of the Issuers
contained herein at the Execution Time and the Closing Date, to the accuracy of
the statements of the Issuers made in any certificates pursuant to the
provisions hereof, to the performance by the Issuers of their obligations
hereunder in all material respects and to the following additional conditions:
(a) The Initial Purchasers shall not have discovered and
disclosed to the Company that, as of the Closing Date, the Final
Memorandum, together with any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of Xxxxxx & Xxxxxxx,
counsel for the Initial Purchasers, is material or omits to state a fact
which, in the opinion of such counsel, is material and is necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
13
14
(b) The Final Memorandum shall have been printed and copies
distributed to the Initial Purchasers as soon as practicable but in no
event later than on the Business Day following the date of this Agreement
or at such later date and time as to which the Initial Purchasers may
agree, and no stop order suspending the qualification or exemption from
qualification of the Securities in any jurisdiction referred to in Section
5(f) shall have been issued and no proceeding for that purpose shall have
been commenced or shall be pending or threatened.
(c) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency which would, as of the Closing Date, singly or in the
aggregate, reasonably be expected to have a Material Adverse Effect; no
action, suit or proceeding shall have been commenced and be pending
against or affecting or, to the knowledge of the Company, threatened
against, the Company or any of its subsidiaries before any court or
arbitrator or any governmental body, agency or official that, singly or in
the aggregate, if adversely determined, would reasonably be expected to
result in a Material Adverse Effect; and no stop order shall have been
issued by the SEC or any governmental agency of any jurisdiction referred
to in Section 5(f) preventing the use of the Final Memorandum, or any
amendment or supplement thereto, or which would reasonably be expected to
have a Material Adverse Effect.
(d) Since the dates as of which information is given in the
Final Memorandum and other than as set forth in the Final Memorandum, (i)
there shall not have been any Material Adverse Change, or any development
that is reasonably likely to result in a Material Adverse Change, or any
material change in the long-term debt, or material increase in the
short-term debt, from that set forth in the Final Memorandum; (ii) no
dividend or distribution of any kind shall have been declared, paid or
made by the Company on any class of its capital stock; (iii) the Company
and its subsidiaries shall not have incurred any liabilities or
obligations, direct or contingent, that are material, individually or in
the aggregate, to the Company and its subsidiaries, taken as a whole, and
that are required to be disclosed on a balance sheet or notes thereto in
accordance with generally accepted accounting principles and are not
disclosed on the latest balance sheet or notes thereto included in the
Final Memorandum.
(e) The Initial Purchasers shall have received a certificate,
dated the Closing Date, signed on behalf of the Company by (i) Xxxxxxxx X.
Xxxxxx, Treasurer and (ii) Xxxxxxx X. Xxxxxx, Chairman of the Board and
Chief Financial Officer, confirming that (A) such officers have
participated in conferences with other officers and representatives of the
Issuers, representatives of the independent public accountants of the
Issuers and representatives of counsel to the Issuers at which the
contents of the Final Memorandum and related matters were discussed and
(B) the matters set forth in paragraphs (b), (c) and (d) of this Section 7
are true and correct as of the Closing Date.
(f) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Securities,
the Exchange Securities, the Indenture, the Registration Rights Agreement,
the Final Memorandum, the New Credit Facility, the Acquisition Agreement
and all other legal matters relating to this Agreement and the
transactions contemplated hereby and thereby, shall be reasonably
satisfactory in all material respects to counsel for the Initial
Purchasers, and the Issuers shall have furnished to such counsel all
documents and information that they may reasonably request to enable them
to pass upon such matters.
(g) Xxxxxx Xxxxxxx & Xxxx LLP, counsel for the Issuers, shall
have
14
15
furnished to the Initial Purchasers its written opinion (containing
customary qualifications, limitations and assumptions that shall be
reasonably satisfactory in all material respects to the Initial
Purchasers' counsel), addressed to the Initial Purchasers and dated the
Closing Date, in form and substance reasonably satisfactory to the Initial
Purchasers, with respect to the Federal laws of the United States, the
laws of the State of New York and the General Corporation Law of the State
of Delaware, to the effect that:
(i) The Company and each of the Guarantors is validly
existing as a corporation and is in good standing under the laws of
its jurisdiction of incorporation.
(ii) Assuming, (a) the accuracy of and compliance with
the representations, warranties and covenants of the Issuers set
forth in Section 1 of this Agreement, (b) the accuracy of and
compliance with the Initial Purchasers' representations, warranties
and covenants set forth in this Agreement, (c) the accuracy of the
representations and warranties and performance of the agreements of
each of the purchasers to whom you initially resell the Securities
as contemplated by the Final Memorandum, (d) compliance with the
offering and transfer procedures and restrictions described in the
Final Memorandum and (e) receipt by the purchasers to whom you
initially resell the Securities of a copy of the Final Memorandum
prior to such sale, the offer, issuance, sale and delivery of the
Securities to the Initial Purchasers, and the initial reoffer,
resale and delivery of the Securities by the Initial Purchasers as
part of their initial distribution thereof, as contemplated by this
Agreement and the Final Memorandum, do not require registration
under the Securities Act, or qualification of the Indenture under
the Trust Indenture Act, it being understood that no opinion is
expressed as to any subsequent resale of Securities or any resale of
Securities by any person other than the Initial Purchasers.
(iii) Each of the Company and the Guarantors has the
corporate power and authority to execute and deliver, and to
consummate the transactions contemplated by, this Agreement; the
Company has the corporate power and authority to issue and deliver
the Notes as contemplated by this Agreement; and the Guarantors have
the corporate power and authority to issue and deliver the
Guarantees as contemplated by this Agreement.
(iv) The execution and delivery of this Agreement have
been duly authorized by all requisite corporate action of the
Company and each Guarantor, and this Agreement has been duly
executed and delivered by the Company and each Guarantor.
(v) The execution and delivery of the Indenture have
been duly authorized by all requisite corporate action of the
Company and each Guarantor; and the Indenture has been duly executed
and delivered by the Company and each Guarantor, and assuming due
authorization, execution and delivery by the Trustee, is a valid and
binding agreement of the Company and each Guarantor, enforceable
against the Company and each Guarantor in accordance with its terms,
except that enforcement thereof may be subject to (A) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws now or hereafter in effect relating to or
affecting creditors' rights generally and (B) general principles of
equity (regardless of whether enforceability is considered in a
proceeding in equity or at law) and the exercise of discretionary
authority of any court before which a proceeding may be brought.
(vi) The execution and delivery of the Notes have been
duly
15
16
authorized by all requisite corporate action of the Company and the
execution and delivery of the Guarantees endorsed on the Notes have
been duly authorized by all requisite corporate action of each of
the Guarantors; the Notes have been duly executed and delivered by
the Company and the Guarantees endorsed on the Notes have been duly
executed and delivered by the Guarantors and, assuming due
authentication by the Trustee, the Notes and the Guarantees endorsed
on the Notes are valid and binding obligations of the Company and
each of the Guarantors, respectively, entitled to the benefits of
the Indenture, enforceable against the Company and each of the
Guarantors in accordance with their terms, except that enforcement
thereof may be subject to (A) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally and (B) general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at
law) and the exercise of discretionary authority of any court before
which a proceeding may be brought.
(vii) The execution and delivery of the Exchange Notes
have been duly authorized by all requisite corporate action of the
Company, and the execution and delivery of the Guarantees endorsed
on the Exchange Notes have been duly authorized by all requisite
corporate action of each of the Guarantors; and, when the Exchange
Notes are duly executed and delivered by the Company and duly
authenticated by the Trustee and the Guarantees endorsed on the
Exchange Notes are duly executed and delivered by each of the
Guarantors, the Exchange Notes will be valid and binding obligations
of the Company and the Guarantees endorsed on the Exchange Notes
will be valid and binding obligations of each of the Guarantors,
entitled to the benefits of the Indenture, enforceable against the
Company and each of the Guarantors, respectively, in accordance with
their terms, except that enforcement thereof may be subject to (A)
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally and (B) general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law) and the exercise of
discretionary authority of any court before which a proceeding may
be brought.
(viii) The execution and delivery of the Registration
Rights Agreement have been duly authorized by all requisite
corporate action of the Company and each of the Guarantors; the
Registration Rights Agreement has been duly executed and delivered
by the Company and each of the Guarantors and, assuming due
authorization, execution and delivery by the Initial Purchasers, the
Registration Rights Agreement is a valid and binding agreement of
the Company and each of the Guarantors, enforceable against the
Company and each of the Guarantors in accordance with its terms,
except that (i) enforcement thereof may be subject to (A)
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally and (B) general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law) and the exercise of
discretionary authority of any court before which a proceeding may
be brought and (ii) the validity and enforceability of any
indemnification or contribution provisions thereof may be limited
under applicable securities laws or public policies.
(ix) The execution and delivery of the New Credit
Facility have been duly authorized by all requisite corporate action
of the Company and each of the Guarantors; and the New Credit
Facility has been duly executed and delivered by the
16
17
Company and each of the Guarantors and, assuming the due
authorization, execution and delivery by the other parties thereto,
is a valid and binding agreement of the Company and each of the
Guarantors, enforceable against each of the Company and the
Guarantors in accordance with its terms, except that enforcement
thereof may be subject to (A) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally and (B) general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at
law) and the exercise of discretionary authority of any court before
which a proceeding may be brought.
(x) The execution and delivery by the Company and each
of the Guarantors of this Agreement, the Indenture, the Registration
Rights Agreement, the New Credit Facility and, in the case of the
Company and Buyer, the Acquisition Agreement, the consummation by
the Company and the Guarantors of the transactions contemplated
hereby and thereby and by the Final Memorandum will not (A) to the
knowledge of such counsel, result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
agreement or instrument of the Company or any of its subsidiaries
filed as an exhibit to the Company's Annual Report on Form 10-K for
1996 or any subsequently filed Quarterly Report on Form 10-Q of the
Company, assuming that the Existing Credit Facility (as defined in
the Final Memorandum) and the Note Agreements relating to the
Company's 7.50% Senior Notes due 2004 are terminated and all amounts
due thereunder are paid prior to the Closing or (B) result in any
violation of the provisions of the charter or bylaws of the Company
or any of the Guarantors, or, to the knowledge of such counsel, any
applicable law, rule or regulation (other than Securities Laws (as
defined below) as to which an opinion is given in paragraph (ii)
above) with respect to the Company or any of the Guarantors or, to
the knowledge of such counsel, any rule or regulation (other than
Securities Laws (as defined below) as to which an opinion is given
in paragraph (ii) above) or order of any court or governmental
agency having jurisdiction over the Company or any of the
Guarantors, except for such violations that would not, singly or in
the aggregate, reasonably be expected to have a Material Adverse
Effect; and, to the knowledge of such counsel, except (A) for such
consents, approvals or authorizations of, or filings, registrations
or qualifications with, governmental authorities as may be required
under the Securities Act and the rules and regulations thereunder,
the Trust Indenture Act and the rules and regulations thereunder or
applicable states securities or Blue Sky laws, rules or regulations
(all of such laws, rules and regulations are collectively referred
to herein as "Securities Laws") in connection with the purchase and
distribution of the Securities by the Initial Purchasers and (B) as
set forth in, and in order to consummate the transactions
contemplated by, the Registration Rights Agreement, the New Credit
Facility or the Acquisition Agreement, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required in connection with
the execution and delivery by the Company and the Guarantors of this
Agreement, the Indenture, the Registration Rights Agreement, in the
case of the Company and Buyer, the Acquisition Agreement or the New
Credit Facility, the consummation by the Company and the Guarantors
of the transactions contemplated hereby and thereby and the issuance
and sale of the Securities and Exchange Securities by the Company
and the Guarantors.
(xi) The Indenture, the Securities, the Registration
Rights Agreement and the New Credit Facility conform in all material
respects to the description thereof contained in the Final
Memorandum.
17
18
(xii) To such counsel's knowledge, no legal or
governmental proceedings are pending to which the Company or any of
its subsidiaries is a party that would be required under the
Securities Act to be described in a registration statement on Form
S-1 or a prospectus contained therein delivered at the time of the
confirmation of the sale of an offering of securities registered
under the Securities Act that are not described in the Final
Memorandum, or, to such counsel's knowledge, that seek to restrain,
enjoin, prevent the consummation of or otherwise challenge the
issuance or sale of the Securities to the Initial Purchasers or the
consummation of the transactions described in the Final Memorandum
under the caption "Use of Proceeds."
(xiii) The Company is not subject to registration and
regulation as an "investment company" within the meaning of the
Investment Company Act.
(xiv) When the Securities are issued and delivered
pursuant to this Agreement, such Securities will not be of the same
class (within the meaning of Rule 144A(d)(3) under the Securities
Act) as securities of the Company or any of its subsidiaries (other
than ECA) that are listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted on an
automated inter-dealer quotation system.
(xv) Neither the issuance nor the sale of the Securities
nor the application by the Company of the net proceeds thereof as
set forth in the Final Memorandum will violate Regulation G, T, U or
X of the Board of Governors of the Federal Reserve System.
In addition, such counsel shall also state that such counsel has
participated in conferences with officers and representatives of the
Issuers, representatives of the independent public accountants for the
Issuers and the Initial Purchasers and their counsel at which the contents
of the Final Memorandum and related matters were discussed and, although
such counsel is not passing upon and does not assume any responsibility
for and has not verified the accuracy, completeness or fairness of the
statements contained in the Final Memorandum, and has not made any
independent check or verification thereof, on the basis of the foregoing
(relying as to materiality to the extent they deemed appropriate upon
facts provided by officers and other representatives of the Issuers), no
facts have come to the attention of such counsel that lead such counsel to
believe that the Final Memorandum, as of its date or the Closing Date,
contained an untrue statement of a material fact or omitted to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no belief or opinion with
respect to the financial statements and notes thereto and other financial
and statistical data included therein).
(h) You shall have received on the Closing Date an opinion of
Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers, dated the Closing
Date and addressed to you, in form and substance reasonably satisfactory
to you.
(i) The Issuers and the Trustee shall have entered into the
Indenture and the Initial Purchasers shall have received counterparts,
conformed as executed, thereof.
(j) The Issuers and the Initial Purchasers shall have entered
into the Registration Rights Agreement and the Initial Purchasers shall
have received counterparts,
18
19
conformed as executed, thereof.
(k) The Issuers shall have entered into the New Credit
Facility (the form and substance of which shall be reasonably acceptable
to the Initial Purchasers) and the Initial Purchasers shall have received
counterparts, conformed as executed, thereof and of all other documents
and agreements entered into in connection therewith. There shall exist at
and as of the Closing Date no conditions that would constitute a default
(or an event that with notice or the lapse of time, or both, would
constitute a default) under the New Credit Facility. On the Closing Date,
the New Credit Facility shall be in full force and effect and shall not
have been modified.
(l) At the Execution Time and at the Closing Date, KPMG Peat
Marwick LLP and Deloitte & Touche LLP shall have furnished to the Initial
Purchasers a letter or letters, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchasers, confirming that they are
independent accountants within the meaning of the Securities Act and the
Exchange Act and the applicable rules and regulations thereunder and Rule
101 of the Code of Professional Conduct of the American Institute of
Certified Public Accountants (the "AICPA") and otherwise reasonably
satisfactory in form and substance to the Initial Purchasers and their
counsel.
(m) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest financial statements included
in the Final Memorandum losses or interferences with their businesses,
taken as a whole, from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Final Memorandum and (ii) since such date there shall
not have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company or its subsidiaries, taken as a whole, otherwise
than as set forth or contemplated in the Final Memorandum, the effect of
which, in any such case described in clause (i) or (ii), is, in the
reasonable judgment of the Initial Purchasers, so material and adverse as
to make it impracticable or inadvisable to proceed with the offering or
the delivery of the Securities being delivered on the Closing Date on the
terms and in the manner contemplated herein and in the Final Memorandum.
(n) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or The NASDAQ Stock
Market's National Market or in the over-the-counter market shall have been
suspended or materially limited, or minimum prices shall have been
established on such exchange by the SEC, or by such exchange or by any
other regulatory body or governmental authority having jurisdiction, (ii)
a banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the
reasonable judgment of the Initial Purchasers, impracticable or
inadvisable to proceed with the offering or delivery of the Securities
being delivered on the Closing Date on the terms and in the manner
contemplated herein and in the Final Memorandum.
(o) As of the Closing Date, no "nationally recognized
statistical rating
19
20
organization" as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act (i) will have imposed (or will have informed the
Company or any Guarantor that it is considering imposing) any condition
(financial or otherwise) on the Company's or any Guarantor's retaining any
rating assigned to the Company or any Guarantor, any securities of the
Company or any Guarantor or (ii) will have indicated to the Company or any
Guarantor that it is considering (a) the downgrading, suspension, or
withdrawal of, or any review for a possible change that does not indicate
the direction of the possible change in, any rating so assigned or (b) any
change in the outlook for any rating of the Company, any Guarantor or any
securities of the Company or any Guarantor.
(p) Xxxxxx & Xxxxxxx shall have been furnished with such
documents, in addition to those set forth above, as they may reasonably
require for the purpose of enabling them to review or pass upon the
matters referred to in this Section 7 and in order to evidence the
accuracy, completeness or satisfaction in all material respects of any of
the representations, warranties or conditions herein contained.
(q) As of the Closing Date, the acquisition of ECA by Buyer
shall have been consummated.
(r) The Company shall have furnished to the Initial Purchasers
evidence satisfactory to them that all Indebtedness contemplated to be
repaid with the proceeds of the offering of the Notes has either (i) been
repaid on the Closing Date or (ii) irrevocably called for redemption on
the Closing Date and the funds to be used for such redemption deposited
into a trust or escrow for such purpose on terms satisfactory to the
Initial Purchasers.
(s) Prior to the Closing Date, the Issuers shall have
furnished to the Initial Purchasers such further information, certificates
and documents as the Initial Purchasers may reasonably request.
(t) At the Closing Date, KPMG Peat Marwick LLP shall have
furnished to the Initial Purchasers a letter, dated as of the Closing
Date, in form and substance reasonably satisfactory to the Initial
Purchasers and their counsel and substantially in the form of Exhibit A
hereto, with respect to the financial information in "Note
18--Supplemental Consolidating Financial Information" in the notes to the
consolidated financial statements of the Company prepared by KPMG Peat
Marwick LLP.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchasers.
8. Indemnification and Contribution. (a) The Issuers jointly and
severally agree to indemnify and hold harmless the Initial Purchasers, the
directors, officers, employees and agents (including, without limitation,
attorneys) of the Initial Purchasers and each person who controls any Initial
Purchaser within the meaning of either the Securities Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Preliminary
Memorandum or the Final Memorandum, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact
20
21
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and agree to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action: provided, however, that the Issuers will not
be liable in any such case to any Initial Purchaser to the extent that any such
loss, claim, damage, liability or action arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made in the Preliminary Memorandum or the Final Memorandum, or in any amendment
thereof or supplement thereto, in reliance upon and in conformity with written
information furnished to the Issuers by or on behalf of any Initial Purchaser
specifically for inclusion therein; provided, further however, that the Issuers
shall not be liable pursuant to this subsection (a) with respect to the
Preliminary Memorandum to the extent that any such loss, claim, damage or
liability arises solely from the fact that an Initial Purchaser sold Securities
to a person to whom there was not sent or given, on or prior to the written
confirmation of such sale, a copy of the Final Memorandum, as amended and
supplemented, provided that the Issuers shall have established the burden of
proving that the Issuers had previously furnished copies thereof to such Initial
Purchaser in accordance with this Agreement and the Final Memorandum, as amended
and supplemented, would have corrected any such untrue statement or omission and
that the Initial Purchaser failed to deliver such Final Memorandum.
(b) Each Initial Purchaser agrees severally and not jointly to
indemnify and hold harmless the Issuers, their directors, officers, employees
and agents (including, without limitation, attorneys), and each person who
controls the Issuers within the meaning of either the Securities Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Issuers to
each Initial Purchaser, but only with reference to written information relating
to such Initial Purchaser furnished to the Issuers by or on behalf of the
Initial Purchaser specifically for inclusion in the Preliminary Memorandum or
the Final Memorandum (or in any amendment or supplement thereto). This indemnity
agreement will be in addition to any liability which any Initial Purchaser may
otherwise have. The Issuers and the Initial Purchasers acknowledge that the
statements set forth in the last paragraph of the cover page, the statements
that the Initial Purchasers intend to make a market in the Notes, the statement
preceding the caption "Disclosure Regarding Forward Looking Statements"
regarding transactions that stabilize the price of the Notes and the statements
under the heading "Plan of Distribution" in the Preliminary Memorandum and the
Final Memorandum constitute the only information furnished in writing by or on
behalf of the Initial Purchasers for inclusion in the Preliminary Memorandum or
the Final Memorandum (or any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof, but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure
materially prejudices the substantial rights and defenses of the indemnifying
party and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by
21
22
the indemnifying party to represent the indemnified party would, in the opinion
of legal counsel to the indemnified party, present such counsel with a conflict
of interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have been informed in writing by legal counsel that
there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the indemnifying
party, (iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties. Such firm shall be designated in writing by NationsBanc
Xxxxxxxxxx Securities, Inc. in the case of parties indemnified pursuant to
paragraph (a) above and by the Company in the case of parties indemnified
pursuant to paragraph (b) above. 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. An indemnifying
party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, in each case in respect of any loss, claim,
damage or liability required to be indemnified thereunder, the Issuers and the
Initial Purchasers agree to contribute to such aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which the Issuers and one or more of the Initial Purchasers may be subject in
such proportion as is appropriate to reflect the relative benefits received by
the Issuers and by the Initial Purchasers from the offering of the Securities;
provided, however, that in no case shall any Initial Purchaser be responsible
for any amount in excess of the purchase discount or commission applicable to
the Securities purchased by the such Initial Purchaser hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the Issuers and the Initial Purchasers shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Issuers and of the Initial Purchasers in connection
with the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations. Benefits received by the Issuers shall
be deemed to be equal to the total net proceeds from the offering (before
deducting expenses), and benefits received by the Initial Purchasers shall be
deemed to be equal to the total purchase discounts and commissions received by
the Initial Purchasers from the Issuers in connection with the purchase of the
Securities hereunder. Relative fault shall be determined by reference to whether
any alleged untrue statement or omission relates to information provided by the
Issuers or the Initial Purchasers. The Issuers and the Initial Purchasers agree
that it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation that does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an
Initial Purchaser within the meaning of either the Securities Act or the
Exchange Act and each director, officer, employee and
22
23
agent of an Initial Purchaser shall have the same rights to contribution as such
Initial Purchaser, and each person who controls the Issuers within the meaning
of either the Securities Act or the Exchange Act and each partner, officer,
director, employee and agent of the Issuers shall have the same rights to
contribution as the Issuers, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. Termination. The obligations of the Initial Purchasers hereunder
may be terminated by the Initial Purchasers by notice given to and received by
the Company prior to delivery of and payment for the Securities if, prior to
that time, any of the events described in Sections 7(m) or 7(n) shall have
occurred or if the Initial Purchasers shall decline to purchase the Securities
for any reason permitted under this Agreement.
10. Reimbursement of Initial Purchaser's Expenses. If (a) the
Issuers shall fail to tender the Securities for delivery to the Initial
Purchasers otherwise than for any reason permitted under this Agreement or (b)
the Initial Purchasers shall decline to purchase the Securities for any reason
permitted under this Agreement (except the occurrence of any of the events
described in Section 7(n)), the Issuers shall reimburse the Initial Purchasers
for the reasonable fees and expenses of their counsel and for such other
reasonable out-of-pocket expenses as shall have been incurred by them in
connection with this Agreement and the proposed purchase of the Securities.
11. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent
by mail, telex or facsimile transmission to NationsBanc Xxxxxxxxxx
Securities, Inc., 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxxxx Xxxxxx, with a copy to Xxxxxx & Xxxxxxx,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxxxxx;
(b) if to the Company, shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in
the Final Memorandum, Attention: Xxxxx X. Xxxxxx, with a copy to Xxxxxx
Xxxxxxx & Xxxx LLP, Attention: Xxxx X. Xxxxx.
Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof. The Issuers shall be entitled to act and
rely upon any request, consent, notice or agreement given or made on behalf of
the Initial Purchasers.
12. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchasers, the Issuers
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Issuers contained
in this Agreement shall also be deemed to be for the benefit of directors,
officers, employees and agents (including, without limitation, attorneys) of the
Initial Purchasers and the person or persons, if any, who control an Initial
Purchasers within the meaning of Section 15 of the Securities Act and (B) the
indemnity agreement of the Initial Purchasers contained in Section 8(b) of this
Agreement shall be deemed to be for the benefit of directors of the Issuers,
officers, employees and agents (including, without limitation, attorneys) of the
Issuers and any person controlling any of the Issuers within the meaning of
Section 15 of the Securities Act. Nothing in this Agreement is intended or shall
be construed to give any person, other than the persons referred to in this
Section 12, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
13. Survival. The respective indemnities, representations,
warranties and agreements
23
24
of the Issuers and the Initial Purchasers contained in this Agreement or made by
or on behalf on them, respectively, pursuant to this Agreement, shall survive
the delivery of and payment for the Securities and shall remain in full force
and effect, regardless of any investigation made by or on behalf of any of them
or any person controlling any of them.
14. Definition of "Business Day." For purposes of this Agreement,
"business day" means each Monday, Tuesday, Wednesday, Thursday and Friday that
is not a day on which banking institutions in The City of New York, New York are
authorized or obligated by law, executive order or regulation to close.
15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[Signature page follows]
24
25
If the foregoing correctly sets forth the agreement between the
Issuers and the Initial Purchaser, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
WORLDTEX, INC.
By: _____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board
THE GUARANTORS:
Regal Manufacturing Company, Inc.
Elastic Corporation of America, Inc.
Elastex, Inc.
WTX Colombia I, Inc.
WTX Colombia II,Inc.
Regal Yarns of Argentina,Inc.
Xxxxxxx & Xxxxx Xxxxx of Delaware, Inc.
By: _____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
26
The foregoing Agreement is hereby
confirmed, accepted and agreed as
of the date first above written.
NATIONSBANC XXXXXXXXXX SECURITIES, INC.
BANCAMERICA XXXXXXXXX XXXXXXXX
INTERSTATE / XXXXXXX LANE CORPORATION
By: NATIONSBANC XXXXXXXXXX SECURITIES, INC.
By: ___________________________________
Name: Xxxxx Xxxxxx
Title: Director
27
SCHEDULE A
Subsidiaries
Name Jurisdiction of Incorporation
---- -----------------------------
Regal Manufacturing Company, Inc. Delaware
Elastic Corporation of America, Inc. Delaware
Elastex, Inc. Delaware
WTX Colombia I, Inc. Delaware
WTX Colombia II, Inc. Delaware
Regal Yarns of Argentina, Inc. North Carolina
Willcox & Xxxxx Xxxxx of Delaware, Inc. Delaware
Worldtex France, S.A. France
Filix Lastex, S.A. France
Galaurtex Sarl France
Moulinage de la Galaure, S.A. France
Rubyco (1987), Inc. Quebec
Fibrexa, Ltda. Colombia
28
SCHEDULE B
MATERIAL CONTRACTS
The Indenture
Registration Rights Agreement
Acquisition Agreement
The New Credit Facility
The IRB Agreements (as defined in the Acquisition Agreement)
29
SCHEDULE C
WORLDTEX, INC.
Initial Purchaser Amount
----------------- ------
NationsBanc Xxxxxxxxxx Securities, Inc............................$145,000,000
BancAmerica Xxxxxxxxx Xxxxxxxx.....................................$22,500,000
Xxxxxxxxxx/Xxxxxxx Xxxx Xxxxxxxxxxx.................................x0,000,000
$175,000,000.00
===============
30
EXHIBIT A
