CONFORMED COPY
SPELL C. LLC
NOTE PURCHASE AGREEMENT
Dated as of December 23, 1997
Zero Coupon Secured Notes
TABLE OF CONTENTS
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ARTICLE 1
INTRODUCTORY MATTERS; ISSUANCE OF NOTES
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Section 1.01. Purchase and Sale of the Notes; the Closing.................. 1
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Section 1.02. Waiver of Closing Conditions................................. 1
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ARTICLE 2
REPRESENTATIONS OF THE ISSUER
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Section 2.01. Organization; Power and Authority............................ 2
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Section 2.02. Authorization, Etc........................................... 2
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Section 2.03. Material Adverse Change...................................... 2
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Section 2.04. Capitalization; Subsidiaries................................. 2
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Section 2.05. Liabilities.................................................. 3
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Section 2.06. Compliance with Laws, Other Instruments of the
Issuer, Etc.................................................. 3
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Section 2.07. Governmental Approvals....................................... 3
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Section 2.08. Litigation................................................... 3
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Section 2.09. Taxes........................................................ 4
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Section 2.10. Compliance with ERISA........................................ 4
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Section 2.11. Offering of Notes............................................ 4
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Section 2.12. Solvency..................................................... 5
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Section 2.13. Use of Proceeds; Margin Regulations.......................... 5
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Section 2.14. Foreign Assets Control Regulations, Inc...................... 5
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Section 2.15. Status Under Certain Statutes................................ 5
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Section 2.16. Ranking...................................................... 6
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Section 2.17. Existing Indebtedness........................................ 6
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Section 2.18. Trust Estate................................................. 6
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Section 2.19. Place of Business............................................ 6
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Section 2.20. Broker's Fees................................................ 6
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ARTICLE 3
REPRESENTATIONS OF THE PURCHASERS
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Section 3.01. Purchase of the Notes........................................ 7
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Section 3.02. Source of Funds.............................................. 9
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Section 3.03. Sale of Notes................................................ 10
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ARTICLE 4 ----
CONDITIONS OF CLOSING
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Section 4.01. Proceedings Satisfactory..................................... 11
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Section 4.02. Opinions of Special Counsel for the Purchasers............... 11
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Section 4.03. Opinions of Counsel for the Issuer and Cherokee.............. 11
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Section 4.04. Opinion of Counsel for the Trustee........................... 12
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Section 4.05. License Agreement............................................ 12
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Section 4.06. Xxxxxx Xxxxxx Documents...................................... 12
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Section 4.07. Trademark Filing............................................. 12
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Section 4.08. Collateral................................................... 12
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Section 4.09. Basic Documents.............................................. 13
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Section 4.10. Representations True, Etc.................................... 13
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Section 4.11. Legality..................................................... 13
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Section 4.12. Private Placement Number..................................... 13
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Section 4.13. Other Purchasers............................................. 14
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Section 4.14. Payment...................................................... 14
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Section 4.15. Purchaser's Representations.................................. 14
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Section 4.16. Opinion of Counsel for the Trustee........................... 14
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Section 4.17. Legality..................................................... 14
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ARTICLE 5
DEFINITIONS
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Section 5.01. Certain Definitions.......................................... 14
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Section 5.02. Accounting Terms, Etc........................................ 16
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ARTICLE 6
HOME OFFICE PAYMENT
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ARTICLE 7
Liabilities of the Purchasers
ARTICLE 8
Miscellaneous
Section 8.01. Expenses..................................................... 17
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Section 8.02. Reliance on and Survival of Representations;
Covenants.................................................... 18
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Section 8.03. Successors and Assigns....................................... 18
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Section 8.04. Communications............................................... 18
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Section 8.05. Indemnification.............................................. 19
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Section 8.06. JURISDICTION AND PROCESS..................................... 20
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Section 8.07. Governing Law................................................ 21
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Section 8.08. Headings..................................................... 21
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Section 8.09. Counterparts................................................. 21
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Section 8.10. Severability................................................. 21
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Section 8.11. Confidentiality.............................................. 21
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EXHIBIT A-1 - Opinion of Xxxxx Xxxx & Xxxxxxxx
EXHIBIT A-2 - Opinion of Xxxxxx & Xxxxxxx with respect to corporate matters
EXHIBIT A-3 - Opinion of Xxxxxx & Xxxxxxx with respect to bankruptcy law
EXHIBIT A-4 - Opinion of Jeffer, Mangels, Xxxxxx & Marmaro LLP
EXHIBIT A-5 - Opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to
Trustee
EXHIBIT A-6 - Opinion of counsel to Xxxxxx Xxxxxx
EXHIBIT A-7 - Opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to
Issuer
EXHIBIT B - Letter Agreement Xxxxxx Xxxxxx
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ARTICLE 1
Introductory Matters; Issuance of Notes
Section 1.01. Purchase and Sale of the Notes; the Closing. Subject to the
terms and conditions hereof and of the Indenture and in reliance upon
representations and warranties of the Purchasers contained herein or made
pursuant hereto, the Issuer agrees to issue and sell to each Purchaser and,
subject to the terms and conditions hereof and of the Indenture and in reliance
on the representations and warranties of the Issuer contained herein and therein
or made pursuant hereto or thereto, each Purchaser severally agrees to purchase
from the Issuer, Notes in a principal amount equal to the respective percentage
(such Purchaser's "PURCHASE PERCENTAGE") of aggregate principal amount of the
Notes set forth opposite such Purchaser's name in Schedule I, at a purchase
price equal to such Purchaser's Purchase Percentage of $47,869,558.83. The
proceeds of the sale of the Notes will be used to pay Cherokee for the Assigned
Rights and for any other lawful purposes. The closing of the purchase of the
Notes hereunder shall take place at the office of Xxxxx Xxxx & Xxxxxxxx at 11:00
A.M., New York City time, on the Closing Date. On the Closing Date, the Issuer
will cause the Trustee to deliver to each Purchaser one or more Notes registered
in such Purchaser's name or in the name of such Purchaser's nominee, in such
denominations (minimum of U.S. $500,000), and in the aggregate principal amount
to be purchased by such Purchaser, all as specified in Schedule I or as such
Purchaser may otherwise specify by timely notice to the Issuer (or, in the
absence of such notice and if not so specified in Schedule I, one Note
registered in such Purchaser's name), duly executed and dated the Closing Date,
against payment of such purchase price by wire transfer of immediately available
funds to Wilmington Trust Company, Wilmington, Delaware, ABA No. 0311100092, for
credit to the account of Cherokee, Account No. 43558-1, Attn: Xxx Xxxxxxx,
Corporate Trust Administration, (000) 000-0000, Reference: Cherokee Collection
Account (and the Issuer agrees that, except to return funds to the Purchasers if
the purchase of the Notes shall not occur on the Closing Date, none of the
proceeds from the sale of the Notes shall be withdrawn from such account until
all of the conditions precedent set forth in Article 4 shall have been satisfied
or waived pursuant to Section 1.02).
Section 1.02. Waiver of Closing Conditions. If on the Closing Date any of
the conditions specified in Article 4 to the obligations hereunder of the
Purchasers, on the one hand, or the Issuer, on the other hand, have not been
fulfilled, the Purchasers or the Issuer, as the case may be, may waive
compliance with any such condition to such extent as the Purchasers or the
Issuer, as the case,
may in their sole discretion determine but the Purchasers or the Issuer, as the
case may be, shall have no obligation to do so. Nothing in this Section 1.02
shall operate to relieve any party of any of its obligations hereunder or to
waive may be any of the rights of any party hereunder.
ARTICLE 2
Representations of the Issuer
The Issuer represents and warrants, as of the date hereof, as follows:
Section 2.01. Organization; Power and Authority. The Issuer is a limited
liability company duly organized and in good standing under the laws of
Delaware. The Issuer has all requisite legal power and authority to own the
properties it purports so to own or hold, to transact its business as proposed
to be transacted, to execute and deliver each Basic Document to which it is a
party and has all requisite legal power and authority to perform the provisions
hereof and thereof. The Issuer is duly qualified or has been duly licensed as a
foreign limited liability company and is (if applicable) in good standing and is
authorized to do business in each jurisdiction in which the character of the
properties owned by it or the nature of the business transacted by it requires
such qualification.
Section 2.02. Authorization, Etc.. Each Basic Document has been duly
authorized by all necessary legal action on the part of the Issuer, and
constitutes a legal, valid and binding obligation of the Issuer enforceable
against the Issuer in accordance with its terms, except as the enforceability
thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of creditors' rights generally
and (ii general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
Section 2.03. Material Adverse Change. The Issuer does not know of any
fact (other than matters of a general economic or political nature) which, so
far as the Issuer can reasonably foresee, the Issuer expects will have a
Material Adverse Effect.
Section 2.04. Capitalization; Subsidiaries. (a) The capital and reserves
of the Issuer as of the date hereof are equal to $100,000. The sole member of
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the Issuer is Cherokee, Inc., which is a Delaware corporation.
(b) The Issuer has no Subsidiaries.
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Section 2.05. Liabilities. There are no liabilities, contingent or
otherwise, of the Issuer except (i) its obligations under the Basic Documents
and the License Agreement and (ii) other liabilities which could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
Section 2.06. Compliance with Laws, Other Instruments of the Issuer, Etc..
The execution and delivery by the Issuer of each Basic Document do not, and the
performance by the Issuer of each Basic Document and the transactions
contemplated hereby and thereby will not, (i) contravene, result in any breach
of, or constitute a default under, or result in the creation of any Lien in
respect of any property of the Issuer under, any existing organizational or
other governing document, or any other existing agreement or instrument to which
the Issuer is bound or by which the Issuer or any of its properties may be bound
or affected (other than any Lien created pursuant to the Indenture and the
Security Agreement), (ii) conflict with or result in a breach of any of the
terms, conditions or provisions of any existing Order of any court, arbitrator
or Governmental Body applicable to the Issuer or (iii) violate any provision of
any existing statute or other existing rule or regulation of any Governmental
Body applicable to the Issuer.
The Issuer is not in violation of any existing statute or other rule or
regulation of any Governmental Body, or any Order of any court, arbitrator or
Governmental Body.
As used in this Agreement, the term "GOVERNMENTAL BODY" includes any
Federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality of any jurisdiction, domestic or foreign,
including but not limited to the United States of America; and the term "ORDER"
includes any order, writ, injunction, decree, judgment, award, determination,
direction or demand.
Section 2.07. Governmental Approvals. Except as contemplated by Section
2.18(b) and (c), no authorization, consent or approval of, and no filing or
registration with, any Governmental Body is required in connection with the
execution, delivery and performance of the Basic Documents or necessary for the
validity or enforceability thereof or for the creation and perfection of the
Liens intended to be created under the Indenture and the Security Agreement.
Section 2.08. Litigation. There are no Proceedings pending or, to the
knowledge of the Issuer, threatened against or affecting the Issuer or any
property of the Issuer.
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Section 2.09. Taxes. The Issuer is not separately subject to tax apart
from Cherokee upon its income under the Code or under applicable Delaware law.
Section 2.10. Compliance with ERISA. Neither the Issuer nor any ERISA
Affiliate has (A) incurred any "ACCUMULATED FUNDING DEFICIENCY" with respect to
any Employee Benefit Plan within the meaning of Section 412 of the Code and
Section 302 of ERISA, whether or not waived, (B) incurred any material liability
to the Pension Benefit Guaranty Corporation established under ERISA (other than
for Pension Benefit Guaranty Corporation insurance premiums payable in the
ordinary course) in connection with any Employee Benefit Plan established or
maintained by it and no contribution which in the aggregate exceeds $1,000,000
to any such Plan subject to the funding requirements of Section 412 of the Code
is due and payable by the Issuer or any ERISA Affiliate, (C) incurred any
material withdrawal liability in connection with a complete or partial
withdrawal from a Multiemployer Plan or (D) had any tax or penalty assessed
against it by the United States Internal Revenue Service or United States
Department of Labor for any alleged violation under Section 4975 of the Code or
Section 406 of ERISA.
The Issuer is not a "PARTY IN INTEREST" or a "DISQUALIFIED PERSON" (as
defined in Section 3(14) of ERISA and Section 4975(e)(2) of the Code,
respectively) with respect to any Employee Benefit Plan disclosed pursuant to
Section 3.02. Assuming the accuracy of the representations and warranties of
the Purchasers set forth in this Agreement, the transactions contemplated by
this Agreement and the other Basic Documents will not constitute a nonexempt
prohibited transaction (as such term is defined in Section 4975 of the Code or
Section 406 of ERISA) and will not subject the Issuer or any holder of a Note to
any tax or penalty on prohibited transactions imposed under said Section 4975 of
the Code or by Section 502(i) of ERISA. The representations by the Issuer in
the preceding sentence are made in reliance upon the representations by the
Purchasers in Section 3.02.
Section 2.11. Offering of Notes. Neither the Issuer nor any other Person
appointed to act on behalf of the Issuer by the Issuer or Cherokee has offered
the Notes or any similar securities for sale to, or solicited any offer to buy
any of the same from any Person other than the Purchasers and not more than 20
other institutional investors. Neither the Issuer nor any such appointee has
taken, or will take, any action which would subject the issuance or sale of the
Notes to Section 5 of the United States Securities Act of 1933, as amended, or
otherwise require the registration, filing or qualification of the Notes under
any applicable laws of the United States of America.
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Section 2.12. Solvency. The Issuer is, and upon giving effect to the
issuance of the Notes and the transactions contemplated by this Agreement will
be, a "solvent institution", as said term is used in Section 1405(c) of the New
York Insurance Law, whose "obligations . . . are not in default as to principal
or interest", as said terms are used in said Section 1405(c). The Issuer is not
entering into the transactions contemplated by this Agreement and the other
Basic Documents with an intent to hinder, delay, or defraud any present or
future holder of any Indebtedness of the Issuer, and after giving effect to the
consummation of such transactions, the fair value of the respective assets of
the Issuer will not be less than its debts, the Issuer will be able to pay its
debts as they mature and the Issuer will not have unreasonably small capital
with which to conduct its business.
Section 2.13. Use of Proceeds; Margin Regulations. The Issuer will use the
proceeds of the sale of the Notes to purchase the Assigned Rights pursuant to
the Trademark Purchase and License Assignment Agreement, to pay any other
amounts due hereunder or under the other Basic Documents and, to the extent not
required for such purposes, for any other lawful purpose. No part of the
proceeds from the sale of the Notes hereunder will be used, directly or
indirectly, by the Issuer for the purpose of buying or carrying any margin stock
within the meaning of Regulation G of the Board of Governors of the United
States Federal Reserve System (12 CFR 207), or for the purpose of purchasing or
carrying or trading in any securities under such circumstances as to involve the
Issuer in a violation of Regulation X of said Board (12 CFR 224) or to involve
any broker or dealer in a violation of Regulation T of said Board (12 CFR 220).
Margin stock does not constitute more than 25% of the assets of the Issuer and
the Issuer has no present intention that margin stock will constitute more than
25% of the assets of the Issuer. As used in this Section, the terms "MARGIN
STOCK" and "PURPOSE OF BUYING OR CARRYING" shall have the meanings assigned to
them in said Regulation G.
Section 2.14. Foreign Assets Control Regulations, Inc. Neither the sale of
the Notes by the Issuer hereunder nor its use of the proceeds thereof will
violate the Trading with the Enemy Act, as amended, or any of the foreign assets
control regulations of the United States Treasury Department (31 CFR, Subtitle
B, Chapter V, as amended) or any enabling legislation or executive order
relating thereto.
Section 2.15. Status Under Certain Statutes. The Issuer is not subject to
regulation under the Public Utility Holding Company Act of 1935, as amended, the
Transportation Acts, as amended, or the Federal Power Act, as amended, and the
Issuer is not an investment company required to register under the Investment
Company Act.
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Section 2.16. Ranking. All obligations and liabilities of the Issuer under
this Agreement and the Notes constitute and will constitute the direct and
unconditional obligations of the Issuer.
Section 2.17. Existing Indebtedness. The Issuer has no Indebtedness except
pursuant to the Indenture. The assets of the Issuer are free and clear of all
Liens except for Permitted Liens.
Section 2.18. Trust Estate. The Issuer owns and has or will own and will
have on the Closing Date and at the time of payment by the Purchasers of the
purchase price for the Notes good, legal and valid title to the Trust Estate
free and clear of all Liens, except Permitted Liens. Assuming performance by
the Trustee of its duties under the Indenture in accordance with the terms
thereof, the provisions of the Indenture, the Security Agreement and the
Trademark Security Agreement are effective to create, in favor of the Trustee
for the benefit of the holders of the Notes, a legal, valid and enforceable Lien
on and security interest in all of the Trust Estate, and upon completion of the
filings and recordations specified in subclauses (i) and (iii) of Section 4.08,
all necessary and appropriate recordings and filings will have been made (and
all related fees have been paid or will have been paid by the time such
recordings and filings have been made) in all necessary and appropriate public
offices in all appropriate jurisdictions, and all other necessary and
appropriate action has been taken, so that the Indenture creates a perfected
Lien on and security interest in all right, title, estate and interest of the
Issuer in the Trust Estate named therein and all necessary and appropriate
consents to the creation, perfection and enforcement of such Lien have been or,
as of the Closing Date will have been, obtained.
Section 2.19. Place of Business. The Issuer's sole place of business will
as of the Closing Date be located at 000 Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx
00000.
Section 2.20. Broker's Fees. No broker's, finder's or similar fee in
connection with the transactions contemplated hereby is payable except for a
placement fee payable to Libra Investments, Inc., which will be paid by the
Issuer.
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ARTICLE 3
Representations of the Purchasers
Each Purchaser severally represents (as to itself and no other Purchaser)
to the Issuer that:
Section 3.01. Purchase of the Notes. (a) Such Purchaser (i) is both a
Qualified Purchaser and (x) a Qualified Institutional Buyer that is aware that
the sale of the Notes to it is being made in reliance on Rule 144A or (y) an
Accredited Investor and (ii) is acquiring such Notes for its own account or for
the account of (x) a Qualified Institutional Buyer that is aware that the sale
of such Notes is being made in reliance on Rule 144A and that is also a
Qualified Purchaser in a transaction meeting the requirements of Rule 144A or
(y) an Accredited Investor that is also a Qualified Purchaser.
(b) Such Purchaser understands that the Notes will bear a legend to the
following effect:
"THE ISSUER OF THE SECURITIES EVIDENCED HEREBY HAS NOT BEEN REGISTERED
UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT
COMPANY ACT"), AND SUCH SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT BY THE HOLDER HEREOF
IN ACCORDANCE WITH THE SECURITIES ACT AND ANY APPLICABLE SECURITIES LAW OF
ANY STATE OF THE UNITED STATES, AND PRIOR TO THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF SUCH SECURITIES UNDER RULE 144(k) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION), ONLY TO A PERSON (i)(A) WHOM
SUCH HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT OR (B) WHO IS AN
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT AND (ii) WHO IS PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A PERSON THAT IS EITHER (A) A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
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REQUIREMENTS OF RULE 144A OR (B) AN INSTITUTIONAL ACCREDITED INVESTOR. IN
ADDITION, SUCH SECURITIES MAY ONLY BE SOLD OR OTHERWISE TRANSFERRED TO A
PERSON WHO (i) IS A QUALIFIED PURCHASER AS SUCH TERM IS DEFINED IN THE
INVESTMENT COMPANY ACT AND (ii) IS PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A PERSON THAT IS A QUALIFIED PURCHASER, AND WHO DELIVERS A
DULY EXECUTED TRANSFEREE CERTIFICATE AND SUCH INFORMATION AS SET FORTH
THEREIN TO THE TRUSTEE AND THE ISSUER, IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.
IN CONNECTION WITH ANY TRANSFER OF THIS NOTE, THE HOLDER HEREOF AGREES TO
DELIVER A DULY EXECUTED TRANSFEROR CERTIFICATE AND SUCH INFORMATION SET
FORTH THEREIN TO THE TRUSTEE AND THE ISSUER.
"THE FOLLOWING INFORMATION IS PROVIDED PURSUANT TO UNITED STATES TREASURY
REGULATION SECTION 1.1275-3(b): THIS NOTE HAS BEEN ISSUED WITH ORIGINAL
ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE HOLDER
OF THIS NOTE MAY OBTAIN THE INFORMATION DESCRIBED IN UNITED STATES TREASURY
REGULATION SECTION 1.1275-3(b)(1)(i) FROM THE TREASURER OF THE ISSUER, AT
THE FOLLOWING ADDRESS: 000 XXXXXX XXXX, XXXXXXXX, XXXXXXXXXX 00000."
(c) Such Purchaser acknowledges that it shall have no rights to require
the registration of the Notes under the Securities Act.
(d) Such Purchaser has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of
purchasing the Notes; it has previously invested in securities similar to the
Notes and fully understands the limitations on transfer described herein; it is
able to bear the economic risk of loss of its investment in the Notes; and it is
presently able to afford the complete loss of such investment.
(e) Such Purchaser is not acquiring the Notes with a view to or for sale
in connection with any distribution thereof or with any present intention of
offering or selling any of the Notes in a transaction that would violate the
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Securities Act or the securities laws of any State of the United States or any
other applicable jurisdiction; provided that the disposition of its property and
the property of any accounts for which it is acting as fiduciary shall remain at
all times within its control.
(f) Such Purchaser acknowledges that it has access to such financial and
other information, and has been afforded the opportunity to ask such questions
of representatives of the Issuer and receive answers it deems necessary in
connection with its decision to purchase the Notes; it has relied exclusively on
its own investigation of the Issuer's and Cherokee's representations set forth
in the Basic Documents and in the License Agreement and has not relied on any
other representation of the Issuer or Cherokee, whether written or oral.
Section 3.02. Source of Funds. Such Purchaser represents that at least one
of the following statements is an accurate representation as to each source of
funds (a "SOURCE") to be used by such Purchaser to pay the purchase price of the
Notes to be purchased by such Purchaser hereunder:
(a) if such Purchaser is an "INSURANCE COMPANY" as defined in Section V(d)
of Prohibited Transaction Exemption ("PTE") 95-60 (as issued by the United
States Department of Labor) and the Source is an "INSURANCE COMPANY GENERAL
ACCOUNT" as defined in Section V(e) of PTE 95-60 then, in accordance with
Section I(a) of PTE 95-60, there is no Employee Benefit Plan, treating as a
single Employee Benefit Plan all plans maintained by the same employer or
employee organization, with respect to which the amount of the reserves and
liabilities for all general account contracts held by or on behalf of such Plan
exceed ten (10%) percent of the total reserves and liabilities of such general
account (exclusive of separate account liabilities) plus surplus;
(b) the Source is either (i) an insurance company pooled separate account,
within the meaning of PTE 90-1 (issued January 29, 1990) or (ii) a bank
collective investment fund, within the meaning of the PTE 91-38 (issued July 12,
1991) and, except as such Purchaser has disclosed to the Issuer in writing
pursuant to this paragraph (b), no Employee Benefit Plan or group of Employee
Benefit Plans maintained by the same employer or employee organization
beneficially owns more than 10% of all assets allocated to such pooled separate
account or collective investment fund; or
(c) the Source constitutes assets of an "INVESTMENT FUND" (within the
meaning of Part V of the QPAM Exemption) managed by a "QUALIFIED PROFESSIONAL
ASSET MANAGER" or "QPAM" (within the meaning of Part V of the QPAM Exemption),
no Employee Benefit Plan's assets that are included in such investment fund,
when combined with the assets of all other employee benefit
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plans established or maintained by the same employer or by an affiliate (within
the meaning of Section V(c)(1) of the QPAM Exemption) of such employer or by the
same employee organization and managed by such QPAM, exceed 20% of the total
client assets managed by such QPAM, the conditions of Part I(c) and (g) of the
QPAM Exemption are satisfied, neither the QPAM nor a person controlling or
controlled by the QPAM (applying the definition of "control" in Section V(e) of
the QPAM Exemption) owns a 5% or more interest in the Issuer and (i) the
identity of such QPAM and (ii) the names of all Employee Benefit Plans whose
assets are included in such investment fund have been disclosed to the Issuer in
writing pursuant to this paragraph (c);
(d) the Source is one or more Employee Benefit Plans, or a separate
account or trust fund comprised of one or more Employee Benefit Plans, each of
which has been identified expressly as such to the Issuer in writing pursuant to
this paragraph (d);
(e) the Source constitutes assets of a Employee Benefit Plan managed by an
"IN-HOUSE ASSET MANAGER" (within the meaning of Part IV(a) of the PTE 96-23)
which has made or properly authorized the decision for such Plan to purchase the
Notes under the circumstances described in PTE 96-23; or
(f) the Source does not include assets of any Employee Benefit Plan.
As used in this Section 3.02, the term "SEPARATE ACCOUNT" shall have the
meaning assigned to such term in Section 3 of ERISA.
Section 3.03. Sale of Notes. Such Purchaser understands that the Issuer
has not been registered under the Investment Company Act and that the Notes have
not been registered under the Securities Act. Such Purchaser understands and
acknowledges that the Notes may not be reoffered, resold, pledged or otherwise
transferred by such Purchaser except (a) to a Person that is a Qualified
Purchaser acquiring for its own account or for the account of a person that is a
Qualified Purchaser, (b) prior to the expiration of the holding period
applicable to sales of such Notes under Rule 144(k) under the Securities Act, to
either (i) a Qualified Institutional Buyer in a transaction meeting the
requirements of Rule 144A acquiring for its own account or for the account of a
person that is a Qualified Institutional Buyer in a transaction meeting the
requirements of Rule 144A or (ii) an Accredited Investor acquiring for its own
account or for the account of a person that is either (x) an Accredited Investor
or (y) a Qualified Institutional Buyer and (c) if the transferor delivers to the
Trustee a duly executed Transferor Certificate in the form of Exhibit C to the
Indenture and the proposed transferee of such Notes delivers to the Trustee a
duly executed Transferee
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Certificate in the form of Exhibit B to the Indenture and such additional
information as set forth therein.
ARTICLE 4
Conditions of Closing
Each Purchaser's obligation to purchase and pay for the Notes to be
purchased by such Purchaser hereunder shall be subject to the conditions
hereinafter set forth:
Section 4.01. Proceedings Satisfactory. All proceedings taken in
connection with the issuance of the Notes and the consummation of the
transactions contemplated hereby, and all documents and papers relating thereto,
shall be reasonably satisfactory to such Purchaser and the Purchasers' special
counsel, and such Purchaser and the Purchasers' special counsel shall have
received copies of such documents and papers, all in form and substance
reasonably satisfactory to such Purchaser and the Purchasers' special counsel,
as such Purchaser or they may reasonably request in connection therewith.
Section 4.02. Opinions of Special Counsel for the Purchasers. Such
Purchaser shall have received an opinion dated the Closing Date and addressed to
such Purchaser and the Trustee from Xxxxx Xxxx & Xxxxxxxx, the Purchasers'
special counsel in substantially the form of Exhibit A-1 hereto and covering
such other matters incident to the transactions contemplated hereby as such
Purchaser may reasonably request.
Section 4.03. Opinions of Counsel for the Issuer and Cherokee. Such
Purchaser shall have received opinions dated the Closing Date and addressed to
such Purchaser and the Trustee (a) from Xxxxxx & Xxxxxxx, special counsel to the
Issuer and Cherokee, substantially in the form of Exhibit A-2 hereto with
respect to corporate matters, (b) from Xxxxxx & Xxxxxxx, special counsel to the
Issuer and Cherokee, substantially in the form of Exhibit A-3 hereto with
respect to bankruptcy law matters, (c) from Jeffer, Mangels, Xxxxxx & Marmaro
LLP, special counsel to the Issuer and Cherokee, substantially in the form of
Exhibit A-4 hereto with respect to trademark matters and (d) from Xxxxxxxx,
Xxxxxx & Finger, P.A., special counsel to the Issuer, substantially in the form
of Exhibit A-7 hereto, and in the case of each such opinion covering such other
matters incident to the transactions contemplated hereby as such Purchaser may
reasonably request.
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Section 4.04. Opinion of Counsel for the Trustee. Such Purchaser shall have
received an opinion dated the Closing Date and addressed to such Purchaser from
Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to the Trustee, substantially
in the form of Exhibit A-5 hereto and covering such other matters incident to
the transactions contemplated hereby as such Purchaser may reasonably request.
Section 4.05. License Agreement. Such Purchaser shall have received a
certificate of an officer of the Issuer certifying that the License Agreement is
in full force and effect, in accordance with its terms, and attaching a copy of
the License Agreement as duly executed and delivered by each of the parties
thereto and certified as a true, correct and complete copy by such officer.
Section 4.06. Xxxxxx Xxxxxx Documents. Such Purchaser shall have received a
copy of (i) a letter duly executed and delivered by the Licensee in the form of
Exhibit B hereto acknowledging the assignment of the License Agreement to the
Issuer, agreeing to make payments thereunder directly to the Collection Account,
stating that to the best knowledge of the Licensee, no defense to the
obligations of the Licensee under the License Agreement and no claim of the
Licensee against Cherokee which might be asserted as a potential offset thereto
exists on the Closing Date and containing certain other agreements of the
Licensee and (ii) an opinion of counsel for the Licensee, who may be an employee
of the Licensee, substantially in the form of Exhibit A-6 hereto, to the effect
that the License Agreement has been duly authorized, executed and delivered and
constitutes a legal, valid and binding obligation of the Licensee enforceable in
accordance with its terms (subject to customary exceptions).
Section 4.07. Trademark Filing. Such Purchaser shall have received
evidence satisfactory to such Purchaser that the Memorandum of Assignment
contemplated by Section 5.03 of the Trademark Purchase and License Assignment
Agreement shall have been tendered to the United States Patent and Trademark
Office for recordation, and any required recording fee in connection therewith
shall have been paid.
Section 4.08. Collateral. The Security Agreement and the Trademark
Security Agreement shall have been duly executed and delivered by the Issuer and
the Trustee and shall be in full force and effect. In addition, such Purchaser
shall have received evidence satisfactory to such Purchaser that the Issuer
shall have taken all actions (including, without limitation, (i) delivery to
special counsel for the Purchasers of the Trademark Security Agreement for
recordation with the United States Patent and Trademark Office, together with
payment of any required recording fees, (ii) the obtaining of a UCC file search
report in the names of each of the Issuer and Cherokee from the Secretary of
State of the State of
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California and (ii delivery to special counsel for the Purchasers of UCC-1
financing statements in the name of the Issuer for filing with the Secretaries
of State of California and Delaware) as may be necessary or as such Purchaser
may reasonably request in order to create and perfect the security interests
created pursuant to the Indenture, the Security Agreement and the Trademark
Security Agreement.
Section 4.09. Basic Documents. Each Basic Document shall have been duly
executed and delivered by the parties thereto and shall be in full force and
effect.
Section 4.10. Representations True, Etc. All representations and
warranties of the Issuer contained in Article 2 and of the Issuer or Cherokee
contained in any other Basic Document or Trademark License shall be true on and
as of the Closing Date; the Issuer shall have performed all agreements on its
part required to be performed under this Agreement and in any other Basic
Document on or prior to the Closing Date; no Default or Event of Default shall
have occurred and be continuing; and such Purchaser shall have received a
certificate from an officer of the Issuer and a certificate from an officer of
Cherokee, each dated the Closing Date, certifying to the effect specified in
this Section 4.10.
Section 4.11. Legality. On the Closing Date the purchasing of the Notes to
be purchased by such Purchaser shall (i) be permitted by the laws and
regulations of each jurisdiction to which such Purchaser is subject, without
recourse to provisions (such as Section 1405(a)(8) of the New York Insurance
Law) permitting limited investments by insurance companies without restriction
as to the character of the particular investment, (ii) not violate any
applicable law or regulation (including, without limitation, Regulation G, T or
X of the Board of Governors of the Federal Reserve System) and (iii) not subject
such Purchaser to any tax, penalty or liability under or pursuant to any
applicable law or regulation, which law or regulation was not in effect on the
date hereof. If requested by such Purchaser, such Purchaser shall have received
an Officer's Certificate from the Issuer certifying as to such matters of fact
as such Purchaser may reasonably specify to enable such Purchaser to determine
whether such purchase is permitted as contemplated in this Section 4.11.
Section 4.12. Private Placement Number. Such Purchaser shall have received
evidence satisfactory to such Purchaser that a private placement number with
respect to the Notes shall have been obtained from Standard & Poor's CUSIP
Service Bureau (in cooperation with the Securities Valuation Office of the
National Association of Insurance Commissioners).
13
Section 4.13. Other Purchasers. All other Purchasers shall have purchased
and made payment for the respective aggregate principal amounts of the Notes to
be purchased by them hereunder.
The obligations of the Issuer to issue and sell the Notes pursuant to this
Agreement are subject to the satisfaction at the Closing Date of the following
conditions:
Section 4.14. Payment. Each Purchaser shall have paid the purchase price
of the Notes to be purchased by it hereunder in accordance with Section 1.01.
Section 4.15. Purchaser's Representations. The representations and
warranties of each Purchaser contained herein shall be true on and as of the
Closing Date as if made on and as of such time and each Purchaser shall have
performed and complied in all material respects with all agreements required by
this Agreement to be performed or complied with by such Purchaser at or prior to
the Closing Date.
Section 4.16. Opinion of Counsel for the Trustee. The Issuer shall have
received an opinion dated the Closing Date and addressed to the Issuer from
Xxxxxxxx, Xxxxxx & Finger, P.A., special counsel to the Trustee, substantially
in the form of Exhibit A-5 hereto and covering such other matters incident to
the transactions contemplated hereby as the Issuer may reasonably request.
Section 4.17. Legality. The issue and sale of the Notes by the Issuer
shall not be prohibited by any applicable law, court order or governmental
regulation.
ARTICLE 5
Definitions
Section 5.01. Certain Definitions. Unless the context otherwise requires,
any reference in this Agreement to any agreement, contract or document shall
mean such agreement, contract or document and all schedules, exhibits and
attachments thereto as amended, supplemented or modified and in effect from time
to time, as permitted hereby. Unless otherwise stated, any reference in this
Agreement to any Person shall include its permitted successors and assigns and,
in the case of any Governmental Body, any Person succeeding to its functions and
capacities. Defined terms in this Agreement shall include in the singular
number
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the plural and in the plural number the singular. The words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement shall,
unless otherwise expressly specified, refer to this Agreement as a whole and not
to any particular provisions of this Agreement and all references to sections
shall be references to sections of this Agreement unless otherwise expressly
specified. Terms defined in the Indenture are used herein as so defined except
as otherwise defined herein. In addition, as used herein the following terms
shall have the following respective meanings (all terms defined in this Section
5.01 and in the other provisions of this Agreement in the singular to have the
same meanings when used in the plural and vice versa):
"ACCREDITED INVESTOR" has the meaning specified in the introduction hereto.
"AGREEMENT" means this Note Purchase Agreement.
"CLOSING DATE" has the meaning specified in the introduction hereto.
"EMPLOYEE BENEFIT PLAN" means any "EMPLOYEE BENEFIT PLAN" as defined in
(S)3(3) of ERISA, or any "PLAN" as defined in Section 4975(e)(1) of the
Code.
"ERISA AFFILIATE" means any trade or business (whether or not incorporated)
that is treated as a single employer together with the Issuer under section
414 of the Code.
"GOVERNMENTAL BODY" has the meaning stated in Section 2.06.
"INDENTURE" has the meaning specified in the introduction hereto.
"INVESTMENT COMPANY ACT" has the meaning specified in the introduction
hereto.
"ISSUER" has the meaning specified in the introduction hereto.
"MULTIEMPLOYER PLAN" means any Employee Benefit Plan that is a
"MULTIEMPLOYER PLAN" (as such term is defined in section 4001(a)(3) of
ERISA).
"NOTES" has the meaning specified in the introduction hereto.
"ORDER" has the meaning specified in Section 2.06.
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"PROCEEDINGS" means all actions, suits, injunctions, writs, restraining
orders, or other proceedings (including counterclaims) in any court or
before any arbitrator of any kind or before or by any Governmental Body.
"PURCHASER" has the meaning specified in the introduction hereto.
"QUALIFIED INSTITUTIONAL BUYERS" has the meaning specified in the
introduction hereto.
"QUALIFIED PURCHASER" has the meaning specified in the introduction hereto.
"RULE 144A" has the meaning specified in the introduction hereto.
"SECURITIES ACT" has the meaning specified in the introduction hereto.
"TRADEMARK SECURITY AGREEMENT" has the meaning assigned to that term in the
Security Agreement.
"TRUSTEE" has the meaning specified in the introduction hereto.
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as from time to
time in effect in the State of New York.
Section 5.02. Accounting Terms, Etc.. All accounting terms used herein
which are not expressly defined in this Agreement have the meanings respectively
given to them in accordance with GAAP. Except as otherwise specifically
provided herein, all computations made pursuant to this Agreement shall be made
in accordance with GAAP, and all balance sheets and other financial statements
shall be prepared in accordance with GAAP.
ARTICLE 6
Home Office Payment
In the case of any Note owned by a Holder who is either (i) a Purchaser or
(ii) a subsequent Holder who has given written notice to the Issuer and the
Trustee requesting that the provisions of this Section shall apply, the Issuer
will, or will cause the Trustee to, make all payments in respect of the Notes of
such Holder, without any presentment thereof, directly to such Holder at the
address of such Holder set forth in Schedule I or at such other address as such
Holder from time to
16
time designates in writing to the Issuer and the Trustee five or more Business
Days prior to the date of payment or, if a bank account is designated for such
Holder on Schedule I hereto or in any written notice to the Issuer and the
Trustee from such Holder, the Issuer will, or will cause the Trustee to, make
such payments in dollars in immediately available funds to such bank account,
marked for attention as indicated, or by such other method of payment or to such
other account of such Holder in any bank in the United States as such Holder may
from time to time direct in writing to the Issuer and the Trustee five or more
Business Days prior to the date of payment. The Holder of any Notes to which
this Section applies agrees that in the event it shall sell or transfer any such
Notes it will, prior to the delivery of such Notes (unless it has already done
so), make a notation thereon of all principal paid on such Notes. With respect
to Notes to which this Section applies, the Issuer and the Trustee shall be
entitled to presume conclusively that such Purchaser or such subsequent Holder
as shall have requested the provisions hereof to apply to its Notes remains the
Holder of such Notes until such Notes shall have been presented to the Trustee
for transfer. Each Holder of any Note that is paid in full shall deliver or
cause to be delivered such Note to the Trustee or the Issuer promptly upon
written request therefor.
ARTICLE 7
Liabilities of the Purchasers
Neither this Agreement nor any disposition of any of the Notes shall be
deemed to create any liability or obligation of any Purchaser or any other
holder of any Note to enforce any provision hereof or of any of the Notes for
the benefit or on behalf of any other Person who may be the holder of any Note.
ARTICLE 8
Miscellaneous
Section 8.01. Expenses. The Issuer agrees, whether or not the transactions
hereby contemplated shall be consummated, to pay all reasonable fees and
disbursements of Xxxxx Xxxx & Xxxxxxxx in connection with the preparation,
negotiation and execution of the Basic Documents and the Trademark Licenses and
the creation and perfection of the Liens on the Trust Estate contemplated by the
Security Agreement. The Issuer also agrees to pay (i) all reasonable expenses
incurred by each Holder (including reasonable counsel fees) in connection with
any amendment or requested amendment (if requested by the
17
Issuer or the Trustee) of, or waiver or consent (if requested by the Issuer or
the Trustee) or requested waiver or consent (if requested by the Issuer or the
Trustee) under or with respect to, this Agreement or any other Basic Document,
whether or not the same shall become effective and (ii) all reasonable expenses
incurred by each Holder (including reasonable counsel fees) incurred in
connection with the preservation of any Lien or realization on or pursuit of
remedies with respect to any of the Trust Estate, in each case covered by this
clause (ii) following the occurrence and during the continuance of any Default
or Event of Default or any workout, restructuring or similar negotiations
relating to the Notes; provided that this sentence shall not require the Issuer
to pay counsel fees for more than one firm of counsel (together with any local
counsel) representing all Holders. The obligations of the Issuer under this
Section 8.01 shall survive the payment or prepayment of the Notes.
In furtherance of the foregoing, on the Closing Date, the Issuer will pay
or cause to be paid the reasonable fees and disbursements of the Purchasers'
special counsel, which are reflected in the statement of such counsel submitted
to the Issuer prior to the Closing Date. The Issuer will also pay or cause to
be paid, promptly upon receipt of supplemental statements therefor, additional
reasonable fees, if any, and disbursements of such special counsel in connection
with the transactions hereby contemplated (including disbursements unposted as
of the Closing Date).
Section 8.02. Reliance on and Survival of Representations; Covenants. All
representations and warranties of the Issuer herein and in any certificates or
other instruments delivered pursuant to this Agreement are made as of the date
hereof in the case of this Agreement or as of the date of any such certificate
or instrument and shall (i) be deemed to be material and to have been relied
upon by each Purchaser, notwithstanding any investigation heretofore or
hereafter made by such Purchaser or on behalf of such Purchaser and (ii) survive
the execution and delivery of this Agreement and the delivery of the Notes to
each Purchaser. All covenants and agreements contained herein shall continue in
effect so long as any Note is outstanding and thereafter as provided in Sections
8.01 and 8.05.
Section 8.03. Successors and Assigns. This Agreement shall bind and inure
to the benefit of and be enforceable by the Issuer and its permitted successors
and assigns hereunder and each Purchaser and its successors and assigns, and, in
addition, shall in every respect inure to the benefit of and be enforceable by
all holders from time to time of the Notes.
Section 8.04. Communications. All notices and other communications
provided for in this Agreement shall be in writing and shall be sent, if
practicable, by confirmed telecopy (with hard copy sent on the same day by
overnight courier)
18
and, otherwise, by overnight courier service prepaid to a Person at its address
specified below. A communication shall be addressed, until such time as a Person
shall have notified the other parties and holders of Notes of a change of
address
(A) if to the Issuer, to:
000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
With a copy to:
Cherokee, Inc., Administrator
0000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Telephone: 000-000-0000
Telecopy: 000-000-0000
(B) if to a Purchaser, at the address for such Purchaser set
forth in Schedule I,
(C) if to any other holder of a Note, at the address of such
holder as it appears on the Note Register maintained pursuant to
the Indenture, or
(D) if to the Trustee, at the address specified therefor in
the Indenture.
Section 8.05. Indemnification. The Issuer agrees to indemnify, exonerate
and hold each Purchaser and each other holder of a Note and each of their
respective trustees, officers, directors, employees and agents (collectively
herein called the "INDEMNITEES" and individually called an "INDEMNITEE") free
and harmless from and against any and all actions, causes of action, suits,
losses, liabilities and damages, and reasonable expenses in connection
therewith, including without limitation reasonable counsel fees and
disbursements (collectively herein called the "INDEMNIFIED LIABILITIES")
incurred by the Indemnitees or any of them as a result of, or arising out of, or
relating to any transaction financed or to be financed in whole or in part
directly or indirectly with the proceeds from the sale of any of the Notes, or
the execution, delivery, performance or enforcement of this Agreement or any
other Basic Document or any instrument contemplated hereby or thereby by any of
the Indemnitees, except for any such Indemnified Liabilities arising on account
of such Indemnitee's gross
19
negligence or willful misconduct, and if and to the extent the foregoing
undertaking may be unenforceable for any reason, the Issuer agrees to make the
maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law. The obligations of the
Issuer under this Section 8.05 shall survive the payment or prepayment of the
Notes.
Section 8.06. JURISDICTION AND PROCESS. THE ISSUER AGREES THAT ANY LEGAL
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
BASIC DOCUMENT OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH OR
THEREWITH, OR ANY LEGAL ACTION OR PROCEEDING TO EXECUTE OR OTHERWISE ENFORCE ANY
JUDGMENT OBTAINED AGAINST THE ISSUER FOR BREACH HEREOF OR THEREOF, OR AGAINST
ANY OF ITS PROPERTIES, MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK BY ANY
PURCHASER OR ON BEHALF OF SUCH PURCHASER OR BY OR ON BEHALF OF ANY HOLDER OF A
NOTE, AS SUCH PURCHASER OR HOLDER MAY ELECT, AND THE ISSUER HEREBY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS
(WITHOUT LIMITING THE JURISDICTION OF OTHER COURTS) FOR PURPOSES OF ANY SUCH
LEGAL ACTION OR PROCEEDING. THE ISSUER HEREBY IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT SERVICE OF PROCESS IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THE
BASIC DOCUMENTS OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION THEREWITH MAY BE
EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY
SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO THE ISSUER AT ITS
ADDRESS SET FORTH IN SECTION 8.04 OR AT SUCH OTHER ADDRESS OF WHICH THE TRUSTEE
SHALL HAVE BEEN NOTIFIED PURSUANT THERETO. IN ADDITION, THE ISSUER (A) HEREBY
IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER BASIC
DOCUMENT OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION HEREWITH OR THEREWITH
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
20
IN AN INCONVENIENT FORUM AND (B) HEREBY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 8.07. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
Section 8.08. Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect any of the terms
hereof.
Section 8.09. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
Section 8.10. Severability. In case any one or more of the provisions
contained in this Agreement or in any instrument contemplated hereby, or any
application thereof, shall be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and therein, and any other application thereof, shall not in any way be
affected or impaired thereby.
Section 8.11. Confidentiality. Each Purchaser shall be deemed to have
agreed by acceptance of the Notes, that all information (other than publicly
available information) received pursuant to such Purchaser's status as a holder
of Notes and identified to such Purchaser in writing by the Issuer as being
confidential, will be held by the Purchaser in accordance with its customary
procedures for handling confidential information, but such Purchaser may make
disclosure to the extent necessary to any bona fide prospective institutional
investor transferee in connection with the contemplated transfer of Notes
(provided that (i) prior to disclosure by such Purchaser after the date hereof
to any prospective institutional investor transferee of a Note of any
information covered by this paragraph, such Purchaser will obtain from such
prospective transferee in favor of the Issuer its written agreement to be bound
by the provisions of this paragraph provided that such Purchaser shall not in
any event be liable to any Person because of the failure of such prospective
transferee to comply with such provisions and (ii) at such time as any
disclosure is made to a transferee, such Purchaser will notify the Issuer in
writing of the information released and the identity of the recipient of such
information) or as required by, in appropriate response to a request by, or as
otherwise customarily disclosed to, any Governmental Body (including without
limitation the National Association of Insurance Commissioners or any successor
thereto) or representative thereof or
21
pursuant to legal process or pursuant to any litigation that such Purchaser may
be involved in, or to the accountants, counsel or other professional advisers of
such Purchaser in the course of their respective duties (provided that such
Purchaser requests any such adviser to whom it discloses such information to
treat all such information as non-public data).
22
If you are in agreement with the foregoing, please sign the form of acceptance
in the space provided below whereupon this Agreement shall become a binding
agreement between you and the Issuer.
Very truly yours,
SPELL C. LLC
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Secretary and Treasurer
23
The foregoing Agreement is hereby accepted and agreed as of the date first above
written :
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK AS TRUSTEE OF A COMMINGLED
PENSION TRUST FUND
By: /s/ E. Xxxxxxxx Xxxx
--------------------------
Name: E. Xxxxxxxx Xxxx
Title: Vice President
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
By: /s/ Xxxxx Xxxx
--------------------------
Name: Xxxxx Xxxx
Title: Assistant Vice President
By: /s/ Xxxxx Xxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Wiriott
--------------------------
Name: Xxxxx X. Wiriott
Title: Director
24
CANADA LIFE ASSURANCE COMPANY
By: /s/ Xxxxxx Xxxxx
--------------------------
Name: Xxxxxx Xxxxx
Title: Associate Treasurer
CANADA LIFE INSURANCE COMPANY OF AMERICA
By: /s/ Xxxxxx Xxxxx
--------------------------
Name: Xxxxxx Xxxxx
Title: Associate Treasurer
CANADA LIFE INSURANCE COMPANY OF NEW YORK
By: /s/ Xxxxxx Xxxxx
--------------------------
Name: Xxxxxx Xxxxx
Title: Associate Treasurer
25