Ex. 10.7
Xxxxxx Holdings, Inc.
$16,350,000
12% Senior Subordinated Notes due 2008
PURCHASE AGREEMENT
March 19, 1997
BT Securities Corporation
Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Holdings, Inc., a Massachusetts corporation ("Holdings"), and
Invifin S.A., a societe anonyme organized under the laws of Luxembourg
("Invifin"), hereby confirm their agreement with you (the "Initial Purchaser"),
as set forth below.
1. The Notes. Subject to the terms and conditions herein contained,
Invifin proposes to sell to the Initial Purchaser $16,350,000 aggregate
principal amount of Holdings' 12% Senior Subordinated Notes due 2008 Series A
(the "Notes"). The Notes, which are currently outstanding, will be amended and
reissued under a supplemental indenture (the "Indenture") to be dated as of
March 25, 1997 by and between Holdings and State Street Bank and Trust Company,
as Trustee (the "Trustee") amending and restating the indenture dated as of
October 30, 1996. Invifin hereby consents to such amendment to such original
indenture and the notes currently outstanding thereunder.
The Notes will be offered and sold to the Initial Purchaser without
being registered under the Securities Act of 1933, as amended (the "Act"), in
reliance on exemptions therefrom.
In connection with the sale of the Notes, Holdings has prepared an
offering memorandum dated March 19, 1997 (the "Memorandum") setting forth or
including a description of the terms of the Notes, the terms of the offering of
the Notes, a description of Holdings and The Xxxxxxx Xxxxxx Company, a
Massachusetts corporation (the "Company"), and any material devel-
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opments relating to Holdings and the Company occurring after the date of the
most recent historical financial statements of the Company included therein.
The Initial Purchaser and its direct and indirect transferees of the
Notes will be entitled to the benefits of the Exchange and Registration Rights
Agreement, substantially in the form attached hereto as Exhibit A (the
"Registration Rights Agreement"), pursuant to which Holdings has agreed, among
other things, to file a registration statement (the "Registration Statement")
with the Securities and Exchange Commission (the "Commission") registering the
Notes or the Exchange Notes (as defined in the Registration Rights Agreement)
under the Act.
2. Representations and Warranties. (A) Holdings represents and
warrants to, and agrees with, the Initial Purchaser that, as of the Closing Date
(as defined in Section 3 below):
(a) Neither the Memorandum as of the date thereof nor any amendment
or supplement thereto as of the date thereof and at all times subsequent thereto
up to the Closing Date contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this Section 2(a) do not apply to statements or omissions made in reliance
upon and in conformity with information relating to the Initial Purchaser
furnished to Holdings in writing by the Initial Purchaser expressly for use in
the Memorandum or any amendment or supplement thereto.
(b) All of the subsidiaries of Holdings are listed in Schedule 1
attached hereto (each, a "Subsidiary" and collectively, the "Subsidiaries"); all
of the outstanding shares of capital stock of Holdings and the Subsidiaries have
been duly authorized and validly issued, are fully paid and nonassessable and
were not issued in violation of any preemptive or similar rights. Except as set
forth in the Memorandum, all of the outstanding shares of capital stock of each
of the Subsidiaries will be free and clear of all liens, encumbrances, equities
and claims or restrictions on transferability (other than those imposed by the
Act and the securities or "Blue Sky" laws of certain jurisdictions) or voting;
except as set forth in the Memorandum, there are no
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(i) options, warrants or other rights to purchase, (ii) agreements or other
obligations to issue or (iii) other rights to convert any obligation into, or
exchange any securities for, shares of capital stock of or ownership interests
in any of the Subsidiaries outstanding. Except for the Subsidiaries or as
disclosed in the Memorandum, Holdings does not own, directly or indirectly, any
shares of capital stock or any other equity or long-term debt securities or have
any equity interest in any firm, partnership, joint venture or other entity.
(c) Each of Holdings and the Subsidiaries is duly incorporated,
validly existing and in good standing under the laws of its respective
jurisdiction of incorporation; each of Holdings and the Subsidiaries has all
requisite corporate power and authority to own its properties and conducts its
business as now conducted and as described in the Memorandum, and is duly
qualified to do business as a foreign corporation in good standing in all other
jurisdictions where the ownership or leasing of its properties or the conduct of
its business requires such qualification, except where the failure to be so
qualified or to have such power or authority would not, individually or in the
aggregate, have a material adverse effect on the business, condition (financial
or otherwise), prospects or results of operations of Holdings and the
Subsidiaries, taken as a whole (any such event, a "Material Adverse Effect").
(d) Holdings has all requisite corporate power and authority to
execute, deliver and perform each of its obligations under the Notes and the
Exchange Notes. The Notes, are substantially in the form of Exhibit A to the
Indenture. The Notes and the Exchange Notes have each been duly and validly
authorized by Holdings and, when executed by Holdings and authenticated by the
Trustee in accordance with the provisions of the Indenture will constitute valid
and legally binding obligations of Holdings, entitled to the benefits of the
Indenture, and enforceable against Holdings in accordance with their terms,
except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or other similar
laws now or hereafter in effect relating to or affecting creditors' rights and
remedies generally, and (ii) general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(e) Holdings has all requisite corporate power and authority to
execute, deliver and perform its obliga-
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tions under the Indenture. The Indenture conforms to the requirements of the
Trust Indenture Act of 1939, as amended (the "TIA"), applicable to an indenture
which is qualified thereunder (assuming the due authorization, execution and
delivery of the Indenture by the Trustee provided that no representation or
warranty is made with respect to the Statement of Eligibility of the Trustee on
Form T-1). The Indenture has been duly and validly authorized, executed and
delivered by Holdings and (assuming the due authorization, execution and
delivery by the Trustee), constitutes a valid and legally binding agreement of
Holdings, enforceable against Holdings in accordance with its terms, except that
the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws now or
hereafter in effect relating to or affecting creditors' rights and remedies
generally and (ii) general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(f) Holdings has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Registration Rights
Agreement. The Registration Rights Agreement has been duly and validly
authorized, executed and delivered by Holdings and (assuming the due
authorization, execution and delivery by the Initial Purchaser) constitutes a
valid and legally binding agreement of Holdings enforceable against Holdings in
accordance with its terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws now or hereafter in effect relating to or affecting
creditors' rights and remedies generally and (ii) general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or in
equity) and any rights to indemnity or contribution thereunder may be limited by
federal and state securities laws and public policy considerations.
(g) Holdings has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. This Agreement and the
consummation by Holdings of the transactions contemplated hereby have been duly
and validly authorized by Holdings. This Agreement has been duly executed and
delivered by Holdings.
(h) No consent, approval, authorization or order of any court or
governmental agency or body, or third party is required for the consummation by
Holdings of the other
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transactions contemplated hereby, except such as have been obtained and such as
may be required (i) under state securities or "Blue Sky" laws in connection with
the purchase and resale of the Notes by the Initial Purchaser and (ii) by
federal or state securities regulatory authorities in connection with or
pursuant to the Registration Rights Agreement. None of Holdings or the
Subsidiaries is (i) in violation of its certificate of incorporation or bylaws
(or similar organizational document), (ii) in breach or violation of any
statute, judgment, decree, order, rule or regulation applicable to any of them
or any of their respective properties or assets, except for any such breach or
violation which would not, individually or in the aggregate, have a Material
Adverse Effect, or (iii) in breach of or default under (nor has any event
occurred which, with notice or passage of time or both, would constitute a
default under) or in violation of any of the terms or provisions of any
indenture, mortgage, deed of trust, loan agreement, note, lease, license,
franchise agreement, permit, certificate, contract or other agreement or
instrument to which any of them is a party or to which any of them or their
respective properties or assets is subject (collectively, "Contracts"), except
for any such breach, default, violation or event which would not have,
individually or in the aggregate, a Material Adverse Effect.
(i) The execution, delivery and performance by Holdings of the
Indenture, the Registration Rights Agreement and this Agreement and the
consummation of the transactions contemplated hereby and thereby will not
conflict with or constitute or result in a breach of or a default under (or an
event which with notice or passage of time or both would constitute a default
under) or violation of any of (i) the terms or provisions of any Contract,
except for any such conflict, breach, violation, default or event which would
not have, individually or in the aggregate, a Material Adverse Effect, (ii) the
certificate of incorporation or bylaws (or similar organizational document) of
Holdings or any of the Subsidiaries, or (iii) (assuming compliance with all
applicable state securities or "Blue Sky" laws and assuming the accuracy of the
representations and warranties of the Initial Purchaser in Section 8 hereof and
assuming compliance with the Act with respect to the exchange of the Notes for
the Exchange Notes and the obligations of Holdings under the Registration Rights
Agreement) any statute, judgment, decree, order, rule or regulation applicable
to Holdings or any of the Subsidiaries or any of their respective properties or
assets, except for
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any such conflict, breach or violation which would not have, individually or in
the aggregate, a Material Adverse Effect.
(j) The audited consolidated financial statements of the Company and
its subsidiaries included in the Memorandum present fairly in all material
respects the financial position, results of operations and cash flows of the
Company and its subsidiaries at the dates and for the periods to which they
relate and have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis, except as otherwise stated therein.
The summary and selected financial and statistical data in the Memorandum
present fairly in all material respects the information shown therein and have
been prepared and compiled on a basis consistent with the audited financial
statements included therein, except as otherwise stated therein. Other than as
set forth in the Memorandum, there are no material differences between the
consolidated financial statements of the Company and its subsidiaries and the
consolidated financial statements of Holdings and the Subsidiaries. Price
Waterhouse LLP and Coopers & Xxxxxxx LLP are each an independent public
accounting firm within the meaning of the Act and the rules and regulations
promulgated thereunder.
(k) The pro forma financial statements (including the notes thereto)
and the other pro forma financial information included in the Memorandum (i)
comply as to form in all material respects with the applicable requirements of
Regulation S-X promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), (ii) have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements, and (iii) have been properly computed on the bases described
therein; the assumptions used in the preparation of the pro forma financial data
and other pro forma financial information included in the Memorandum are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions or circumstances referred to therein, in each case assuming a
debt financing by the Company.
(l) Except as disclosed in the Memorandum, each of Holdings and the
Subsidiaries possesses all material licenses, permits, certificates, consents,
orders, approvals and other authorizations from, and has made all declarations
and filings with, all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other tribunals, presently
required or neces-
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sary to own or lease, as the case may be, and to operate its respective
properties and to carry on its respective businesses as now or proposed to be
conducted as set forth in the Memorandum ("Permits"), except where the failure
to obtain such Permits would not have, individually or in the aggregate, a
Material Adverse Effect; and none of Holdings or the Subsidiaries has received
any notice of any proceeding relating to revocation or modification of any such
Permit, except as described in the Memorandum and except where such revocation
or modification would not have, individually or in the aggregate, a Material
Adverse Effect.
(m) Since the date of the most recent financial statements appearing
in the Memorandum, except as described in the Memorandum or as reflected in the
pro forma financial statements included therein, (i) none of Holdings or the
Subsidiaries has incurred any liabilities or obligations, direct or contingent,
or entered into or agreed to enter into any transactions or contracts (written
or oral) not in the ordinary course of business which liabilities, obligations,
transactions or contracts would, individually or in the aggregate, be material
to the business, condition (financial or otherwise), prospects or results of
operations of Holdings and its Subsidiaries, taken as a whole, (ii) none of
Holdings or the Subsidiaries has purchased any of its outstanding capital stock,
nor declared, paid or otherwise made any dividend or distribution of any kind on
its capital stock (other than with respect to any of such Subsidiaries, the
purchase of, or dividend or distribution on, capital stock owned, directly or
indirectly, by Holdings) and (iii) there has been no material change in the
capital stock or long-term indebtedness of Holdings or the Subsidiaries.
(n) Each of Holdings and the Subsidiaries has filed all necessary
federal, state and foreign income and franchise tax returns, except where the
failure to so file such returns would not have, individually or in the
aggregate, a Material Adverse Effect, and has paid all material taxes shown as
due thereon; and other than tax deficiencies which Holdings or any Subsidiary is
contesting in good faith and for which Holdings or such Subsidiary has provided
adequate reserves, there is no tax deficiency that has been asserted against
Holdings or any of the Subsidiaries that would have, individually or in the
aggregate, a Material Adverse Effect.
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(o) The statistical and market-related data included in the
Memorandum are based on or derived from sources which Holdings and the
Subsidiaries believe to be reliable and accurate in all material respects.
(p) None of Holdings, the Subsidiaries or any agent acting on their
behalf has taken or will take any action that might cause this Agreement or the
sale of the Notes to violate Regulation G, T, U or X of the Board of Governors
of the Federal Reserve System, in each case as in effect on the Closing Date.
(q) Each of Holdings and the Subsidiaries has good and marketable
title to all real property and good title to all personal property described in
the Memorandum as being owned by it and good and marketable title to a leasehold
estate in the real and personal property described in the Memorandum as being
leased by it free and clear of all liens, charges, encumbrances or restrictions,
except as described in the Memorandum or to the extent the failure to have such
title or the existence of such liens, charges, encumbrances or restrictions
would not have, individually or in the aggregate, a Material Adverse Effect.
Holdings and the Subsidiaries own or possess adequate licenses or other rights
to use all patents, trademarks, service marks, trade names, copyrights and
know-how necessary to conduct the businesses now or proposed to be operated by
them as described in the Memorandum, and none of Holdings or the Subsidiaries
has received any notice of infringement of or conflict with (or knows of any
such infringement of or conflict with) asserted rights of others with respect to
any patents, trademarks, service marks, trade names, copyrights or know-how
which would reasonably be expected to have, if such assertion of infringement or
conflict were sustained, a Material Adverse Effect.
(r) There are no legal or governmental proceedings involving or
affecting Holdings or any Subsidiary or any of their respective properties or
assets which would be required to be described in a prospectus pursuant to the
Act that are not described in the Memorandum or which seek to restrain, enjoin,
prevent the consummation of or otherwise challenge the sale of the Notes to be
sold hereunder or the consummation of the other transactions described in the
Memorandum; there are no material contracts or other documents which would be
required to be described in a prospectus pursuant to the Act that are not
described in the Memorandum.
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(s) Except as disclosed in the Memorandum, to the best knowledge of
Holdings, there has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission, or other release of any kind of toxic
or other wastes or other hazardous substances by, due to, or caused by Holdings
(or, to the best of Holdings knowledge, any other entity for whose acts or
omissions Holdings is or may reasonably be expected to be liable) upon any of
the property now or, to the actual knowledge of the current chief executive
officer, chief financial officer, treasurer or secretary of Holdings, previously
owned or leased by the Company (i) in violation of any statute or any ordinance,
rule, regulation, order, judgment, decree or permit or (ii) which would, under
any statute or any ordinance, rule (including rule of common law), regulation,
order, judgment, decree or permit, give rise to any liability, except in the
case of both clauses (i) and (ii) for any violation or liability which would not
have, individually or in the aggregate with all such violations and liabilities,
a Material Adverse Effect; there has been no disposal, discharge, emission or
other release of any kind onto such property or into the environment surrounding
such property of any toxic or other wastes or other hazardous substances with
respect to which Holdings has knowledge, except for any such disposal,
discharge, emission, or other release of any kind which would not have,
individually or in the aggregate with all such discharges and other releases, a
Material Adverse Effect.
(t) There is no strike, labor dispute, slowdown or work stoppage
with the employees of Holdings or any of the Subsidiaries which is pending or,
to the knowledge of Holdings or any of the Subsidiaries, threatened.
(u) Each of Holdings and the Subsidiaries carries insurance in such
amounts and covering such risks in each case as is in accordance with industry
practice to protect its business and the value of its properties.
(v) None of Holdings or the Subsidiaries has any material liability
for any prohibited transaction or funding deficiency or any complete or partial
withdrawal liability with respect to any pension, profit sharing or other plan
which is subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), to which Holdings or any of the Subsidiaries makes or ever
has made a contribution and in which any employee of Holdings or of any
Subsidiary is or has ever been a participant. With respect to such
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plans, Holdings and each Subsidiary is in compliance in all material respects
with all applicable provisions of ERISA.
(w) Holdings (i) makes and keeps accurate books and records and (ii)
maintains internal accounting controls which provide reasonable assurance that
(A) transactions are executed in accordance with management's authorization, (B)
transactions are recorded as necessary to permit preparation of its financial
statements and to maintain accountability for its assets, (C) access to its
assets is permitted only in accordance with management's authorization and (D)
the reported accountability for its assets is compared with existing assets at
reasonable intervals.
(x) Holdings is not required to register as an "investment company"
or "promoter" or "principal underwriter" for an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended, and the
rules and regulations thereunder.
(y) No holder of securities of Holdings or any Subsidiary will be
entitled to have such securities registered under the registration statements
required to be filed by Holdings pursuant to the Registration Rights Agreement
other than as expressly permitted thereby.
(z) At the time of the issuance of the notes which are being amended
by the Indenture, the fair value and present fair saleable value of the assets
of Holdings (on a consolidated basis) exceeded the sum of its stated liabilities
and identified contingent liabilities; Holdings (on a consolidated basis) was
not (a) left with unreasonably small capital with which to carry on its business
as it was then proposed to be conducted, (b) unable to pay its debts (contingent
or otherwise) as they mature or (c) otherwise insolvent.
(aa) None of Holdings, the Subsidiaries or any of their respective
Affiliates (as defined in Rule 501(b) of Regulation D under the Act) has
directly, or through any agent, (i) sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of, any "security" (as defined in the
Act) which is or could be integrated with the sale of the Notes in a manner that
would require the registration under the Act of the Notes or (ii) engaged in any
form of general solicitation or general advertising (as those terms are used in
Regulation D under the Act) in connection with the offering of the Notes or in
any manner in-
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volving a public offering within the meaning of Section 4(2) of the Act.
Assuming the accuracy of the representations and warranties of the Initial
Purchaser in Section 8 hereof, it is not necessary in connection with the offer,
sale and delivery of the Notes to the Initial Purchaser in the manner
contemplated by this Agreement to register any of the Notes under the Act or to
qualify the Indenture under the TIA.
(bb) No securities of Holdings or any Subsidiary are of the same
class (within the meaning of Rule 144A under the Act) as the Notes and listed on
a national securities exchange registered under Section 6 of the Exchange Act,
or quoted in a U.S. automated inter-dealer quotation system.
(cc) None of Holdings or the Subsidiaries has taken, nor will any of
them take, directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or manipulation of the
price of the Notes.
Any certificate signed by any officer of Holdings or any Subsidiary
and delivered to the Initial Purchaser or to counsel for the Initial Purchaser
shall be deemed a joint and several representation and warranty by Holdings and
each of the Subsidiaries to each Initial Purchaser as to the matters covered
thereby.
(B) Invifin represents and warrants to the Initial Purchaser that,
as of the Closing Date:
(a) Invifin has all requisite power and authority to execute, deliver
and perform its obligations under this Agreement and to sell,
assign, transfer and deliver the Notes to be sold hereunder. This
Agreement and the consummation by Invifin of the transactions
contemplated hereby have been duly and validly authorized by
Invifin. This Agreement has been duly executed and delivered by
Invifin.
(b) Invifin will convey good and valid title to the Notes to be
delivered hereunder, free and clear of all liens, encumbrances,
equities and claims whatsoever.
(c) No consent, approval, authorization or order of any court or
governmental agency or body, or third party is required for the
consummation by Invifin of the transactions contemplated hereby,
except such as have been obtained and such as may be required (i)
under
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state securities or the "Blue Sky" laws in connection with the
purchase and resale of the Notes by the Initial Purchaser and (ii)
by federal or state securities regulatory authorities in connection
with or pursuant to the Registration Rights Agreement.
(d) The execution, delivery and performance by Invifin of this Agreement
and the consummation of the transactions contemplated hereby will
not conflict with or constitute or result in a breach of or default
under (or an event which with notice or passage of time or both
would constitute a default under) or violation of any of (i) the
terms and provisions of any indenture, mortgage, deed of trust, loan
agreement, note, lease, license, franchise agreement, permit,
certificate, contract or other agreement or instrument to which it
is a party or to which it or any of its properties or assets is
subject, except for any such conflict, breach, violation, default or
event which would not have, individually or in the aggregate, a
material adverse effect on Invifin, (ii) the certificate of
incorporation or bylaws (or similar organizational document) of
Invifin, or (iii) (assuming compliance with all applicable state
securities or "Blue Sky" laws and assuming the accuracy of the
representations and warranties of the Initial Purchaser in Section 8
hereof and assuming compliance with the Act with respect to the
exchange of the Notes for the Exchange Notes and the obligations of
Holdings under the Registration Rights Agreement) any statute,
judgment, decree, order, rule or regulation applicable to Invifin or
any of its properties or assets, except for any such conflict,
breach or violation which would not have, individually or in the
aggregate, a material adverse effect on Invifin.
3. Purchase, Sale and Delivery of the Notes. On the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, Invifin agrees to sell to
the Initial Purchaser, and the Initial Purchaser agrees to purchase the Notes
from Invifin, at 100% of their principal amount plus accrued interest to the
Closing Date. One or more certificates in definitive form for the Notes that the
Initial Purchaser has agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Initial Purchaser
requests upon notice to Invifin at least 36 hours prior to the Closing Date,
shall be delivered by Invifin to the
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Initial Purchaser, against payment by or on behalf of the Initial Purchaser of
the purchase price therefor by wire transfer (same day funds), net of the
overnight cost of such funds, to such account or accounts as Invifin shall
specify prior to the Closing Date, or by such means as the parties hereto shall
agree prior to the Closing Date. Such delivery of and payment for the Notes
shall be made at the offices of Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx at 10:00 A.M., New York time, on March 25, 1997, or at such other
place, time or date as the Initial Purchaser, on the one hand, and Invifin, on
the other hand, may agree upon, such time and date of delivery against payment
being herein referred to as the "Closing Date." Holdings will make such
certificate or certificates for the Notes available for checking and packaging
by the Initial Purchaser at the offices of BT Securities Corporation in New
York, New York, or at such other place as BT Securities Corporation may
designate, at least 24 hours prior to the Closing Date.
Invifin shall not be obligated to deliver any of the Notes except
upon payment for all the Notes to be purchased as provided herein.
4. Offering by the Initial Purchaser. The Initial Purchaser proposes
to make an offering of the Notes at the price and upon the terms set forth in
the Memorandum, as soon as practicable after this Agreement is entered into and
as in the judgment of the Initial Purchaser is advisable.
5. Covenants of Holdings. Holdings covenants and agrees with the
Initial Purchaser that:
(a) Holdings will not amend or supplement the Memorandum or any
amendment or supplement thereto of which the Initial Purchaser shall not
previously have been advised and furnished a copy for a reasonable period of
time prior to the proposed amendment or supplement and as to which the Initial
Purchaser shall not have given their consent. Holdings will promptly, upon the
reasonable request of the Initial Purchaser or counsel for the Initial
Purchaser, make any amendments or supplements to the Memorandum that may be
necessary or advisable in connection with the resale of the Notes by the Initial
Purchaser.
(b) Holdings will cooperate with the Initial Purchaser in arranging
for the qualification of the Notes for offering and sale under the securities or
"Blue Sky" laws of such jurisdictions as the Initial Purchaser may designate and
will continue such qualifications in effect for as long
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as may be necessary to complete the resale of the Notes; provided, however, that
in connection therewith, Holdings shall not be required to qualify as a foreign
corporation or to execute a general consent to service of process in any
jurisdiction or subject itself to taxation in excess of a nominal dollar amount
in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the distribution by
the Initial Purchaser of the Notes, any event occurs or information becomes
known as a result of which the Memorandum as then amended or supplemented would
include any untrue statement of a material fact, or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if for any other reason it is
necessary at any time to amend or supplement the Memorandum to comply with
applicable law, Holdings will promptly notify the Initial Purchaser thereof and
will prepare, at no expense to the Initial Purchaser, an amendment or supplement
to the Memorandum that corrects such statement or omission or effects such
compliance.
(d) Holdings will, without charge, provide to the Initial Purchaser
and to counsel for the Initial Purchaser as many copies of the Memorandum or any
amendment or supplement thereto as the Initial Purchaser may reasonably request.
(e) For so long as any of the Notes remain outstanding, Holdings
will furnish to the Initial Purchaser copies of all reports and other
communications (financial or otherwise) furnished by Holdings to the Trustee or
to the holders of the Notes and, as soon as available, copies of any reports or
financial statements furnished to or filed by Holdings or the Company with the
Commission or any national securities exchange on which any class of securities
of Holdings or the Company may be listed.
(f) If such financial statements become available, prior to the
Closing Date, Holdings will furnish to the Initial Purchaser, as soon as they
have been prepared, a copy of any unaudited interim financial statements of
Holdings or the Company for any period subsequent to the period covered by the
most recent financial statements appearing in the Memorandum.
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(g) None of Holdings or any of its Affiliates will sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any
"security" (as defined in the Act) which could be integrated with the sale of
the Notes in a manner which would require the registration under the Act of the
Notes.
(h) Holdings will not, and will not permit any of the Subsidiaries
to, engage in any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Act) in connection with the offering of
the Notes or in any manner involving a public offering within the meaning of
Section 4(2) of the Act.
(i) For so long as any of the Notes remain outstanding, Holdings
will make available at its expense, upon request, to any holder of such Notes
and any prospective purchaser thereof the information specified in Rule
144A(d)(4) under the Act, unless Holdings is then subject to Section 13 or 15(d)
of the Exchange Act.
(j) Holdings will use its best efforts to [(i) permit the Notes to
be designated PORTAL securities in accordance with the rules and regulations
adopted by the NASD relating to trading in the Private Offerings, Resales and
Trading through Automated Linkages market (the "PORTAL Market") and (ii)] permit
the Notes to be eligible for clearance and settlement through The Depository
Trust Company.
6. Expenses. Holdings agrees to pay all costs and expenses incident
to the performance of its and Invifin's obligations under this Agreement,
whether or not the transactions contemplated herein are consummated or this
Agreement is terminated pursuant to Section 11 hereof, including all costs and
expenses incident to (i) the printing, word processing or other production of
documents with respect to the transactions contemplated hereby, including any
costs of printing the Memorandum and any amendment or supplement thereto, and
any "Blue Sky" memoranda, (ii) all arrangements relating to the delivery to the
Initial Purchaser of copies of the foregoing documents, (iii) the fees and
disbursements of the counsel, the accountants and any other experts or advisors
retained by Holdings and Invifin, (iv) preparation (including printing),
issuance and delivery to the Initial Purchaser of the Notes, (v) Holdings' and
Invifin's expenses related to the qualification of the Notes under state
securities and "Blue Sky" laws, (vi) Holdings' and Invifin's expenses related to
any meetings
-16-
with prospective investors in the Notes, (vii) fees and expenses of the Trustee
including fees and expenses of counsel, (viii) all expenses and listing fees
incurred in connection with the application for quotation of the Notes on the
PORTAL Market and (ix) the expenses of the Initial Purchaser in connection with
the transactions contemplated hereby in an amount not to exceed $20,000
(including the fees and expenses of counsel for the Initial Purchaser). If the
sale of the Notes provided for herein is not consummated because any condition
to the obligations of the Initial Purchaser set forth in Section 7 hereof is not
satisfied or because of any failure, refusal or inability on the part of
Holdings or Invifin to perform all obligations and satisfy all conditions on
their part to be performed or satisfied hereunder (other than solely by reason
of a default by the Initial Purchaser of its obligations hereunder after all
conditions hereunder have been satisfied in accordance herewith), Holdings
agrees to promptly reimburse the Initial Purchaser upon demand for all
out-of-pocket expenses (including reasonable fees, disbursements and charges of
Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Initial Purchaser) that shall have been
incurred by the Initial Purchaser in connection with the proposed purchase and
sale of the Notes.
7. Conditions of the Obligations Hereunder. (A) The obligation of
the Initial Purchaser to purchase and pay for the Notes shall, in its sole
discretion, be subject to the satisfaction or waiver of the following conditions
on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchaser shall have received
the opinion, dated as of the Closing Date and addressed to the Initial
Purchaser, of Xxxxx Xxxxxxx & Xxxxxxxxx, LLP, special Massachusetts counsel for
Holdings, in form and substance satisfactory to counsel for the Initial
Purchaser, to the effect that:
(i) Holdings is duly incorporated and is validly existing under the
laws of Massachusetts and has all requisite corporate power and authority
to own or lease its properties and to conduct its business in the manner
in which it presently is conducted.
(ii) Holdings has all requisite corporate power and authority to
execute, deliver and perform each of its obligations under the Indenture,
the Notes, the Exchange Notes and the Registration Rights Agreement; each
of the Indenture, the Notes, the Exchange Notes and the Registration
Rights Agreement has been duly and validly authorized
-17-
by Holdings; the Indenture, the Notes and the Registration Rights
Agreement have been duly executed and delivered by Holdings.
(iii) Holdings has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby; this Agreement and the
consummation by Holdings of the transactions contemplated hereby have been
duly and validly authorized by Holdings. This Agreement has been duly
executed and delivered by Holdings.
(b) On the Closing Date, the Initial Purchaser shall have received
the opinion, dated as of the Closing Date and addressed to the Initial
Purchaser, of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Company, in form and
substance satisfactory to counsel for the Initial Purchaser, to the effect that:
(i) The delivery to the Initial Purchaser of certificates for the
Notes being sold hereunder by Invifin against payment therefor as provided
herein, assuming the Initial Purchaser purchased the Notes in good faith
without knowledge of any adverse claim, will pass good and valid title to
the Notes to the Initial Purchaser, free and clear of all liens,
encumbrances, equities and claims whatsoever.
(ii) The Indenture conforms to the requirements for qualification
under the TIA (assuming due authorization, execution and delivery thereof
by Holdings and the Trustee and provided that such counsel need express no
opinion with respect to the qualification of the Trustee thereunder); the
Indenture, when duly executed and delivered by Holdings (assuming the due
authorization thereof by Holdings and the due authorization, execution and
delivery thereof by the Trustee), will constitute the valid and legally
binding agreement of Holdings, enforceable against Holdings in accordance
with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws now
or hereafter in effect relating to or affecting creditors' rights and
remedies generally and to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity).
(iii) The Notes are substantially in the form of Exhibit A to the
Indenture. The Notes, when duly executed
-18-
and delivered by Holdings (assuming the due authorization of the Notes by
Holdings and the due authentication, execution and delivery of the Notes
by the Trustee in accordance with the Indenture), will constitute the
valid and legally binding obligations of Holdings, entitled to the
benefits of the Indenture, and enforceable against Holdings in accordance
with their terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws now
or hereafter in effect relating to or affecting creditors' rights and
remedies generally and to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity).
(iv) The Exchange Notes, when duly executed and delivered by
Holdings in accordance with the terms of the Registration Rights Agreement
and the Indenture (assuming the due authorization, execution and delivery
of the Indenture by Holdings and the Trustee, the due authorization of the
Exchange Notes by Holdings and the due authentication and delivery of the
Exchange Notes by the Trustee in accordance with the Indenture), and when
duly and validly exchanged for the Notes, and assuming compliance with
federal and state securities laws, will constitute the valid and legally
binding obligations of Holdings, entitled to the benefits of the
Indenture, and enforceable against Holdings in accordance with their
terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws now or hereafter in
effect relating to or affecting creditors' rights and remedies generally
and to general principles of equity (regardless of whether enforcement is
sought in a proceeding at law or in equity).
(v) The Registration Rights Agreement, when duly executed and
delivered by Holdings (assuming the due authorization thereof by Holdings
and the due authorization, execution and delivery thereof by the Initial
Purchaser), will constitute the valid and legally binding agreement of
Holdings, enforceable against Holdings in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws now or hereafter in effect
relating to or affecting creditors' rights and remedies generally and to
general principles of equity (regardless of whether enforcement is sought
in a proceeding at law or in equity) and except that such counsel need not
express an opinion
-19-
as to the enforceability of indemnification or contribution provisions
contained therein.
(vi) Except as set forth in the Memorandum, no holder of securities
of Holdings or any Subsidiary is entitled pursuant to any Contract
identified to such counsel in a certificate of Holdings as being a
material instrument to have such securities registered under a
registration statement filed by Holdings pursuant to the Registration
Rights Agreement.
(vii) The execution, delivery and performance by Holdings of this
Agreement, the Indenture and the Registration Rights Agreement will not
conflict with or constitute or result in a breach or a default under (or
an event which with notice or passage of time or both would constitute a
default under) or in violation of any of the terms or provisions as they
exist on the Closing Date of any Contract identified to such counsel in a
certificate of Holdings as being a material instrument, except for any
such conflict, breach, violation, default or event which would not,
individually or in the aggregate, have a Material Adverse Effect, or
(assuming the accuracy of the representations and warranties of the
Initial Purchaser in Section 8 hereof and assuming compliance with the Act
with respect to the exchange of the Notes for the Exchange Notes and the
obligations of Holdings under the Registration Rights Agreement and
excluding federal and state securities laws and regulations as to which
such counsel shall not express an opinion pursuant to this paragraph
(vii)) any statute, judgment, decree, order, rule or regulation known to
such counsel to be applicable to Holdings, except for any such conflict,
breach or violation which would not, individually or in the aggregate,
have a Material Adverse Effect.
(viii) No consent, approval, authorization or order of any
governmental authority is required for the consummation by Holdings of the
transactions contemplated hereby (assuming compliance with federal and
state securities laws in connection with or pursuant to the Registration
Rights Agreement and provided that such counsel need express no opinion in
this paragraph (viii) regarding indemnification provisions), except such
as may be required under state securities or Blue Sky laws, as to which
such counsel need express no opinion, and those which have previously been
obtained.
-20-
(ix) None of Holdings or the Subsidiaries is required to be
registered as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(x) No registration under the Act of the Notes is required in
connection with the sale of the Notes to the Initial Purchaser as
contemplated by this Agreement, the Indenture and the Memorandum or in
connection with the initial resale of the Notes by the Initial Purchaser
in accordance with Section 8 of this Agreement, and prior to the
commencement of the Registered Exchange Offer (as defined in the
Registration Rights Agreement) or the effectiveness of the Shelf
Registration Statement (as defined in the Registration Rights Agreement),
the Indenture is exempt from the qualification requirements of the TIA, in
each case assuming (i) that the purchasers who buy such Notes in the
initial resale thereof are qualified institutional buyers as defined in
Rule 144A promulgated under the Act ("QIBs") or institutional accredited
investors as defined in Rule 501(a)(1), (2), (3) or (7) promulgated under
the Act ("Accredited Investors"), (ii) the accuracy of the Initial
Purchaser's representations in Section 8 and those of Holdings contained
in this Agreement and compliance with their respective agreements as set
forth in this Agreement and (iii) that the offering of the Notes will be
conducted solely in the manner contemplated by this Agreement, the
Indenture and the Memorandum.
At the time the foregoing opinion is delivered, Xxxxxx Xxxx &
Xxxxxxxx LLP shall additionally state that it has participated in conferences
with officers and other representatives of Holdings and representatives of the
independent public accountants for Holdings, at which conferences the contents
of the Memorandum and related matters were discussed, because the purpose of its
professional engagement was not to establish or confirm factual matters and
because the scope of its examination of the affairs of Holdings did not permit
it to verify the accuracy, completeness or fairness of the statements set forth
in the Memorandum, it is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained in the
Memorandum, and on the basis of the foregoing, no facts have come to its
attention which lead it to believe that the Memorandum, on the date thereof or
at the Closing Date, contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements contained therein, in
light of the circumstances under which they were made, not misleading (it being
understood
-21-
that such firm need express no opinion with respect to the financial statements
and related schedules and notes thereto and the other financial, statistical and
accounting data included in the Memorandum). The opinion of Xxxxxx, Xxxx &
Xxxxxxxx LLP shall also state that based on the foregoing, there are no legal or
governmental proceedings involving or affecting Holdings or any of its
properties or assets which would be required to be described in a prospectus
pursuant to the Act that are not described in the Memorandum or which seek to
restrain, enjoin, prevent the consummation of or otherwise challenge the sale
of, the Notes to be sold hereunder. The opinion of Xxxxxx Xxxx & Xxxxxxxx LLP
described in this Section may be limited to matters of New York and Federal law
and shall be rendered to the Initial Purchaser at the request of Holdings and
shall so state therein.
References to the Memorandum in this subsection (b) shall include
any amendment or supplement thereto prepared in accordance with the provisions
of this Agreement at the Closing Date. In rendering such opinion, Xxxxxx, Xxxx &
Xxxxxxxx LLP may rely as to matters of fact to the extent such counsel deems
proper, on certificates of responsible officers of Holdings and public officials
which are furnished to the Initial Purchaser.
(c) The representations and warranties of Invifin and Holdings
contained in this Agreement shall be true and correct on and as of the Closing
Date; the statements of Holdings' officers made pursuant to any certificate
delivered in accordance with the provisions hereof shall be true and correct on
and as of the date made and on and as of the Closing Date; Holdings shall have
performed all covenants and agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to the Closing Date; and,
except as described in the Memorandum (exclusive of any amendment or supplement
thereto after the date hereof), subsequent to the date of the most recent
financial statements in such Memorandum, there shall have been no event or
development, and no information shall have become known, that, individually or
in the aggregate, has or would be reasonably likely to have a Material Adverse
Effect.
(d) The sale of the Notes hereunder shall not be enjoined
(temporarily or permanently) on the Closing Date.
(e) Subsequent to the date of the most recent financial statements
in the Memorandum (exclusive of any amendment or supplement thereto after the
date hereof), none
-22-
of Holdings or any of the Subsidiaries shall have sustained any loss or
interference with respect to its business or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any strike, labor dispute, slow down or work stoppage or from any legal or
governmental proceeding, order or decree, which loss or interference,
individually or in the aggregate, has or would be reasonably likely to have a
Material Adverse Effect.
(f) The Initial Purchaser shall have received a certificate of
Holdings, dated the Closing Date, signed on behalf of Holdings by its President
and the Clerk to the effect that:
(i) The representations and warranties of Holdings contained in this
Agreement are true and correct on and as of the Closing Date and Holdings
has performed all covenants and agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the Closing
Date;
(ii) At the Closing Date, since the date hereof or since the date of
the most recent financial statements in the Memorandum (exclusive of any
amendment or supplement thereto after the date hereof), no event or
development has occurred, and no information has become known, that,
individually or in the aggregate, has or would be reasonably likely to
have a Material Adverse Effect; and
(iii) The sale of the Notes hereunder has not been enjoined
(temporarily or permanently).
(g) On the Closing Date, the Initial Purchaser shall have received
the Registration Rights Agreement executed by Holdings and such agreement shall
be in full force and effect at all times from and after the Closing Date.
On or before the Closing Date, the Initial Purchaser and counsel for
the Initial Purchaser shall have received such further documents, opinions,
certificates, letters and schedules or instruments relating to the business,
corporate, legal and financial affairs of Holdings and the Subsidiaries as they
shall have heretofore reasonably requested from Holdings.
All such documents, opinions, certificates, letters, schedules or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are rea-
-23-
sonably satisfactory in all material respects to the Initial Purchaser and
counsel for the Initial Purchaser. Holdings shall furnish to the Initial
Purchaser such conformed copies of such documents, opinions, certificates,
letters, schedules and instruments in such quantities as the Initial Purchaser
shall reasonably request.
(B) The obligations of Invifin to sell the Notes and the obligation
of the Initial Purchaser to purchase and pay for the Notes shall be subject to
the negotiation of the Indenture, including the form of the Notes and the
Exchange Notes, and the Registration Rights Agreement consistent with the terms
set forth on Schedule 2 hereto in form and substance satisfactory to Invifin and
the Initial Purchaser.
8. Offering of Notes; Restrictions on Transfer. The Initial
Purchaser represents and warrants that it is either a QIB or an Accredited
Investor. The Initial Purchaser agrees with Holdings and Invifin that (i) it has
not and will not solicit offers for, or offer or sell, the Notes by any form of
general solicitation or general advertising (as those terms are used in
Regulation D under the Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Act; and (ii) it has and will solicit offers
for the Notes only from, and will offer the Notes only to, (x) persons whom the
Initial Purchaser reasonably believes to be QIBs or, if any such person is
buying for one or more institutional accounts for which such person is acting as
fiduciary or agent, only when the Initial Purchaser reasonably believes that
each such account is a QIB, to whom notice has been given that such sale or
delivery is being made in reliance on Rule 144A, and, in each case, in
transactions under Rule 144A or (y) a limited number of other institutional
investors reasonably believed by the Initial Purchaser to be Accredited
Investors that, prior to their purchase of the Notes, deliver to the Initial
Purchaser a letter containing the representations and agreements set forth in
Annex A to the Memorandum; provided, however, that, in the case of clause (y),
in purchasing such Notes such persons are deemed to have represented and agreed
as provided under the caption "Transfer Restrictions" contained in the
Memorandum.
9. Indemnification and Contribution. Holdings agrees to indemnify
and hold harmless the Initial Purchaser, and each person, if any, who controls
the Initial Purchaser within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, against any losses, claims, damages or liabilities to which
the Initial Purchaser or such controlling person may become subject under the
Act, the Exchange Act or
-24-
otherwise, insofar as any such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any material
fact contained in the Memorandum or any amendment or supplement thereto or
any application or other document, or any amendment or supplement thereto,
executed by Holdings or based upon written information furnished by or on
behalf of Holdings filed in any jurisdiction in order to qualify the Notes
under the securities or "Blue Sky" laws thereof or filed with any
securities association or securities exchange (each an "Application"); or
(ii) the omission or alleged omission to state, in the Memorandum or
any amendment or supplement thereto or any Application, a material fact
required to be stated therein or necessary to make the statements therein
not misleading,
and will reimburse, as incurred, the Initial Purchaser and each such controlling
person for any legal or other expenses reasonably incurred by the Initial
Purchaser or such controlling person in connection with investigating, defending
against or appearing as a third-party witness in connection with any such loss,
claim, damage, liability or action; provided, however, Holdings will not be
liable in any such case to the extent that any such loss, claim, damage, or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in the Memorandum or any
amendment or supplement thereto or any Application in reliance upon and in
conformity with written information concerning the Initial Purchaser furnished
to Holdings by the Initial Purchaser specifically for use therein. This
indemnity agreement will be in addition to any liability that Holdings may
otherwise have to the indemnified parties. Holdings shall not be liable under
this Section 9 for any settlement of any claim or action effected without its
prior written consent, which shall not be unreasonably withheld.
(b) The Initial Purchaser agrees to indemnify and hold harmless
Holdings, its directors, its officers, each person, if any, who controls
Holdings within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act and Invifin against any losses, claims, damages or liabilities to
which Holdings, any such director, officer or controlling person or Invifin may
become subject under the Act, the Ex-
-25-
change Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Memorandum or any amendment or supplement thereto or any Application, or (ii)
the omission or the alleged omission to state therein a material fact required
to be stated in the Memorandum or any amendment or supplement thereto or any
Application, or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information concerning the Initial
Purchaser, furnished to Holdings by the Initial Purchaser specifically for use
therein; and subject to the limitation set forth immediately preceding this
clause, will reimburse, as incurred, any legal or other expenses reasonably
incurred by Holdings, any such director, officer or controlling person or
Invifin in connection with investigating or defending against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action in respect thereof. This indemnity agreement will be in addition to
any liability that the Initial Purchaser may otherwise have to the indemnified
parties. The Initial Purchaser shall not be liable under this Section 9 for any
settlement of any claim or action effected without their consent, which shall
not be unreasonably withheld. None of Holdings or Invifin shall, without the
prior written consent of the Initial Purchaser, effect any settlement or
compromise of any pending or threatened proceeding in respect of which the
Initial Purchaser is or could have been a party, or indemnity could have been
sought hereunder by the Initial Purchaser, unless such settlement (A) includes
an unconditional written release of the Initial Purchaser, in form and substance
reasonably satisfactory to the Initial Purchaser, from all liability on claims
that are the subject matter of such proceeding and (B) does not include any
statement as to an admission of fault, culpability or failure to act by or on
behalf of the Initial Purchaser.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 9, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9, notify the indemnifying party of the commencement
thereof in writing; but the omission to so notify the indemnifying party (i)
will
-26-
not relieve it from any liability under paragraph (a) or (b) above unless and to
the extent such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses 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 paragraphs (a) and (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (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 receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 9 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Initial Pur-
-27-
chaser in the case of paragraph (a) of this Section 9 or Holdings in the case of
paragraph (b) of this Section 9, representing the indemnified parties under such
paragraph (a) or paragraph (b), as the case may be, who are parties to such
action or actions) or (ii) the indemnifying party has authorized in writing the
employment of counsel for the indemnified party at the expense of the
indemnifying party. After such notice from the indemnifying party to such
indemnified party, the indemnifying party will not be liable for the costs and
expenses of any settlement of such action effected by such indemnified party
without the prior written consent of the indemnifying party (which consent shall
not be unreasonably withheld), unless such indemnified party waived in writing
its rights under this Section 9, in which case the indemnified party may effect
such a settlement without such consent.
(d) In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 9 is unavailable to, or insufficient
to hold harmless, an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof), each indemnifying party, in
order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party or parties on the one hand and the indemnified party on the other in
connection with the statements or omissions or alleged statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof). The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by Holdings or Invifin, on the one hand, or the
Initial Purchaser on the other, the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission
or alleged statement or omission, and any other equitable considerations
appropriate in the circumstances. The parties hereto agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the first sentence of this
paragraph (d). Notwithstanding any other provision of this paragraph (d),
-28-
the Initial Purchaser shall not be obligated to make contributions hereunder
that in the aggregate exceed the total discounts, commissions and other
compensation received by the Initial Purchaser under this Agreement, less the
aggregate amount of any damages that Initial Purchaser has otherwise been
required to pay by reason of the untrue or alleged untrue statements or the
omissions or alleged omissions to state a material fact, and no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls the Initial Purchaser within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Initial Purchaser, and each director of Holdings, each
officer of Holdings, each person, if any, who controls Holdings within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act and Invifin,
shall have the same rights to contribution as Holdings.
10. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of Holdings, its
officers and the Initial Purchaser set forth in this Agreement or made by or on
behalf of them pursuant to this Agreement shall remain in full force and effect,
regardless of (i) any investigation made by or on behalf of Holdings, any of its
officers or directors, the Initial Purchaser or any controlling person referred
to in Section 9 hereof and (ii) delivery of and payment for the Notes. The
respective agreements, covenants, indemnities and other statements set forth in
Sections 6, 9 and 15 hereof shall remain in full force and effect, regardless of
any termination or cancellation of this Agreement.
11. Termination. This Agreement may be terminated in the sole
discretion of the Initial Purchaser by notice to Invifin given prior to the
Closing Date in the event that Holdings shall have failed, refused or been
unable to perform all its obligations and satisfy all its conditions to be
performed or satisfied hereunder at or prior thereto or, if at or prior to the
Closing Date:
(i) any of Holdings or the Subsidiaries shall have sustained any
loss or interference with respect to its businesses or properties from
fire, flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any strike, labor dispute, slow down or work
-29-
stoppage or any legal or governmental proceeding, which loss or
interference, in the sole judgment of the Initial Purchaser, has had or
has a Material Adverse Effect, or there shall have been, in the sole
judgment of the Initial Purchaser, any event or development that,
individually or in the aggregate, has or could be reasonably likely to
have a Material Adverse Effect (including without limitation a change in
control of Holdings), except in each case as described in the Memorandum
(exclusive of any amendment or supplement thereto);
(ii) trading in securities of the Company or in securities generally
on the New York Stock Exchange, American Stock Exchange or the NASDAQ
National Market shall have been suspended or minimum or maximum prices
shall have been established on any such exchange or market;
(iii) a banking moratorium shall have been declared by New York or
United States authorities;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, or (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or any other national or international
calamity or emergency, or (C) any material change in the financial markets
of the United States which, in the case of (A), (B) or (C) above and in
the sole judgment of the Initial Purchaser, makes it impracticable or
inadvisable to proceed with the offering or the delivery of the Notes as
contemplated by the Memorandum; or
(v) any securities of Holdings or the Company shall have been
downgraded or placed on any "watch list" for possible downgrading by any
nationally recognized statistical rating organization.
(b) Termination of this Agreement pursuant to this Section 11 shall
be without liability of any party to any other party except as provided in
Section 10 hereof.
12. Information Supplied by the Initial Purchaser. The statements
set forth in the last paragraph on the front cover page and in the third
paragraph under the heading "Private Placement" in the Memorandum constitute the
only information furnished by the Initial Purchaser to Holdings for the purposes
of Sections 2(a) and 9 hereof.
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13. Notices. All communications hereunder shall be in writing and,
if sent to the Initial Purchaser, shall be mailed or delivered to BT Securities
Corporation, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Finance Department; if sent to Holdings, shall be mailed or delivered to the
Company at 0000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxx, Attention: Chief
Financial Officer; with a copy to Xxxxxx, Xxxx & Xxxxxxxx LLP, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxx, Esq.; if sent to
Invifin, shall be mailed or delivered to Invifin at 00 xxx Xxxxxxxxx X 0000
Xxxxxxxxxx.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; and one business
day after being timely delivered to a next-day air courier.
14. Successors. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchaser, Holdings, Invifin and their respective
successors and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained; this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of Holdings contained in Section 9 of this Agreement shall also
be for the benefit of any person or persons who control the Initial Purchaser
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
and (ii) the indemnities of the Initial Purchaser contained in Section 9 of this
Agreement shall also be for the benefit of the directors of Holdings, its
officers, any person or persons who control Holdings within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act and Invifin. No
purchaser of Notes from the Initial Purchaser will be deemed a successor because
of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
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16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement among Holdings,
Invifin and the Initial Purchaser.
Very truly yours,
XXXXXX HOLDINGS, INC.
By:
-------------------------------
Name:
Title:
INVIFIN S.A.
By:
-------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
BT SECURITIES CORPORATION
By:
----------------------------
Name:
Title:
SCHEDULE 1
Subsidiaries of the Company
Jurisdiction of
Name Incorporation
---- -------------
The Xxxxxxx Xxxxxx Company Massachusetts
Carter's de San Xxxxx, Inc. Delaware
Carterco, X.X. Xxxxx Rica
Xxxxxx'x xx Xxxxxxxx, X.X. Xxxxx Rica
