Exhibit 10.7
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REGISTRATION RIGHTS AGREEMENT
Dated as of March 14, 1997
by and among
Anvil Knitwear, Inc.
and
Anvil Holdings, Inc.
and
Cottontops, Inc.
and
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Securities, Inc.
and
NationsBanc Capital Markets, Inc.
(collectively, the "Initial Purchasers")
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of March 14, 1997 by and among Anvil Knitwear, Inc., a Delaware
corporation ("Anvil"), and Anvil Holdings, Inc., a Delaware corporation
("Holdings"), Cottontops, Inc., a Delaware corporation ("Cottontops") and
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Securities, Inc. and NationsBanc Capital Markets, Inc. (each an "Initial
Purchaser" and, collectively, the "Initial Purchasers"), each of whom has agreed
to purchase Anvil's 10-7/8% Senior Notes due 2007 (the "Series A Senior Notes")
pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated March 11,
1997 (the "Purchase Agreement"), by and among Anvil, Holdings and the Initial
Purchasers. In order to induce the Initial Purchasers to purchase the Senior
Notes, Anvil has agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
obligations of the Initial Purchasers set forth in Section 4(p) of the Purchase
Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: Any day other than a Legal Holiday.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Securities Act of the Exchange Offer Registration
Statement relating to the Series B Senior Notes (and the related Holdings
Guarantee) to be issued in the Exchange Offer, (ii) the maintenance of such
Registration Statement as continuously effective and the keeping open of the
Exchange Offer for a period not less than the minimum period required pursuant
to Section 3(b) hereof and (iii) the delivery, by Holdings and Anvil to the
Registrar under the Indenture, of Series B Senior Notes (and the related
Holdings Guarantee) in the same aggregate principal amount as the aggregate
principal amount of Series A Senior Notes tendered by the Holders thereof
pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Series A Senior Notes, each
Interest Payment Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by Holdings and Anvil under the
Securities Act of the Series B Senior Notes (and the related Holdings Guarantee)
pursuant to a Registration Statement pursuant to which Anvil and Holdings offer
the Holders of all outstanding Transfer Restricted Securities the opportunity to
exchange all such outstanding Transfer Restricted Securities held by such
Holders for Series B Senior Notes (and the related Holdings Guarantee) in an
aggregate principal amount equal to the aggregate principal amount of Transfer
Restricted Securities tendered by such Holders in response to such exchange
offer.
Exchange Offer Registration Statement: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers propose
to sell the Series A Senior Notes to certain "qualified institutional buyers,"
as such term is defined in Rule 144A under the Securities Act, and to certain
institutional "accredited investors," as such term is defined in Rule 501(1),
(2), (3) and (7) of Regulation D under the Act.
Holders: As defined in Section 2(b) hereof.
Holdings Guarantee: The guarantee by Holdings of the obligations of Anvil
under the Series B Senior Notes, substantially in the form attached as Exhibit C
to the Indenture.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of March 14, 1997, among Anvil,
Holdings, Cottontops, the other Subsidiary Guarantors and United States Trust
Company of New York, as trustee (the "Trustee"), pursuant to which the Senior
Notes are to be issued, as such Indenture is amended or supplemented from time
to time in accordance with the terms thereof.
Initial Purchaser: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the Senior Notes.
Legal Holiday: A Saturday, a Sunday or a day on which federal offices or
banking institutions in the City of New York, in the city of the Corporate Trust
Office of the Trustee, or at a place of payment are authorized by law,
regulation or executive order to remain closed. If a payment date is a Legal
Holiday, payment may be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
NASD: National Association of Securities Dealers, Inc.
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Person: An individual, partnership, corporation, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
Record Holder: With respect to any Damages Payment Date relating to Senior
Notes, each Person who is a Holder of Senior Notes on the record date with
respect to the Interest Payment Date on which such Damages Payment Date shall
occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of Anvil and Holdings
relating to (a) an offering of Series B Senior Notes (and related Holdings
Guarantee) pursuant to an Exchange Offer or (b) the registration for resale of
Transfer Restricted Securities pursuant to the Shelf Registration Statement,
which is filed pursuant to the provisions of this Agreement, in each case,
including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and material
incorporated by reference therein.
Securities Act: The Securities Act of 1933, as amended.
Senior Notes: The Series A Senior Notes and the Series B Senior Notes.
Series B Senior Notes: Anvil's 10-7/8% Series B Senior Notes due 2007 to
be issued pursuant to the Indenture in the Exchange Offer.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as
in effect on the date of the Indenture.
Transfer Restricted Securities: Each Senior Note, until the earliest to
occur of (a) the date on which such Senior Note is exchanged in the Exchange
Offer by a Person other than a Broker-Dealer for a Series B Senior Note and is
entitled to be resold to the public by the Holder thereof without complying with
the prospectus delivery requirements of the Securities Act, (b) following the
exchange by a Broker-Dealer in the Exchange Offer of a Senior Note for a Series
B Senior Note, the date on which such Series B Senior Note is sold to a
purchaser who receives from such Broker-Dealer on or prior to the date of such
sale a copy of the prospectus contained in the Exchange Offer Registration
Statement, (c) the date on which such Senior Note effectively has been
registered under the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iv) the date on which such Senior Note is distributed
to the public pursuant to Rule 144 under the Securities Act.
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Underwritten Registration or Underwritten Offering: A registration in
which securities of Anvil are sold to an underwriter for reoffering to the
public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be a
holder of Transfer Restricted Securities (each, a "Holder") whenever such Person
owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under applicable
law or Commission policy (after the procedures set forth in Section 6(a) below
have been complied with), Holdings and Anvil shall (i) cause to be filed under
the Securities Act with the Commission as soon as practicable after the Closing
Date, but in no event later than 60 days after the Closing Date, an Exchange
Offer Registration Statement relating to the Series B Senior Notes (and the
related Holdings Guarantee) and the Exchange Offer, (ii) use their best efforts
to cause such Exchange Offer Registration Statement to become effective at the
earliest possible time, but in no event later than 120 days after the Closing
Date, (iii) in connection with the foregoing, file (A) all pre-effective
amendments to such Exchange Offer Registration Statement as may be necessary in
order to cause such Exchange Offer Registration Statement to become effective,
(B) if applicable, a post-effective amendment to such Exchange Offer
Registration Statement pursuant to Rule 430A under the Securities Act and (C)
all filings in connection with the registration and qualification of the Series
B Senior Notes (and the related Holdings Guarantee) as are necessary under the
Blue Sky laws of such jurisdictions in order to permit Consummation of the
Exchange Offer, and (iv) upon the effectiveness of such Registration Statement,
use their best efforts to issue on or prior to 150 days after the Closing Date
(the "Exchange Offer Effectiveness Date") Series B Senior Notes (and the related
Holdings Guarantee) in exchange for all Series A Senior Notes tendered prior
thereto in the Exchange Offer. The Exchange Offer shall be on the appropriate
form permitting registration of the Series B Senior Notes (and the related
Holdings Guarantee) to be offered in exchange for the Transfer Restricted
Securities and to permit resales of Senior Notes held by Broker-Dealers as
contemplated by Section 3(c) below.
(b) Holdings and Anvil shall cause the Exchange Offer Registration
Statement to be effective continuously and shall keep the Exchange Offer open
for a period of not less than the minimum period required under applicable
federal and state securities laws to Consummate the Exchange Offer; provided,
however, that in no event shall such period be less than 20 Business Days.
Holdings and Anvil shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the Series B Senior
Notes (and the related Holdings Guarantee) shall be included in the Exchange
Offer Registration Statement. Holdings and Anvil shall use their best efforts to
cause the Exchange Offer to be Consummated on the
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earliest practicable date after the Exchange Offer Registration Statement has
become effective, but in no event later than 30 Business Days thereafter.
(c) Holdings and Anvil shall indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer Registration
Statement that any Broker-Dealer who holds Series A Senior Notes that are
Transfer Restricted Securities and that were acquired for its own account as a
result of market-making activities or other trading activities (other than
Transfer Restricted Securities acquired directly from Anvil), may exchange such
Series A Senior Notes pursuant to the Exchange Offer; however, such
Broker-Dealer may be deemed to be an "underwriter" within the meaning of the
Securities Act and, consequently, must deliver a prospectus meeting the
requirements of the Securities Act in connection with any resales of the Series
B Senior Notes received by such Broker-Dealer in the Exchange Offer, which
prospectus delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer Registration
Statement. Such "Plan of Distribution" section shall also contain all other
information with respect to such resales by Broker-Dealers that the Commission
may require in order to permit such resales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose the amount of
Senior Notes held by any such Broker-Dealer except to the extent required by the
Commission as a result of a change in policy after the date of this Agreement.
Holdings and Anvil shall use their reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 6(c) below to the extent
necessary to ensure that it is available for resales of Senior Notes acquired by
Broker-Dealers for their own accounts as a result of market-making activities or
other trading activities, and to ensure that such Exchange Offer Registration
Statement conforms with the requirements of this Agreement, the Securities Act
and the policies, rules and regulations of the Commission as announced from time
to time, for a period equal to the shorter of (A) one hundred and eighty (180)
consecutive days after the date the Exchange Offer is Consummated (subject to
the provisions of Section 6(c)(i) below) and (B) the date on which all Transfer
Restricted Securities acquired in the Exchange Offer by Restricted
Broker-Dealers have been sold to the public by such Restricted Broker-Dealers.
In order to facilitate such resales, at any time during such 180-day period
Anvil shall provide to Broker-Dealers, promptly upon request, and in no event
more than five Business Days after any such request, sufficient copies of the
latest version of such Prospectus.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) Holdings and Anvil are not required to file
an Exchange Offer Registration Statement with respect to the Series B Senior
Notes (and the related Holdings Guarantee) or permitted to consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable law
(after the procedures set forth in Section 6(a) below have been complied with)
or Commission policy or (ii) if any Holder of Transfer Restricted Securities
shall notify Holdings and Anvil within 10 Business Days following Consummation
of the Exchange Offer that (A) such Holder was prohibited by law or Commission
policy from participating in the Exchange Offer, (B) such Holder may not resell
the Series B Senior Notes acquired by it in
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the Exchange Offer to the public without delivering a prospectus and the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder, or (C) such Holder is
a Broker-Dealer and holds Series A Senior Notes acquired directly from Anvil or
one of its affiliates, then Holdings and Anvil shall
(x) cause to be filed on or prior to (1) in the case of a Registration
Statement filed pursuant to clause (i) above, the earlier to occur of 45 days
after the date on which Holdings and Anvil determine that they are not
required to file the Exchange Offer Registration Statement or 75 days after
the Closing Date and (2) in the case of a Registration Statement filed
pursuant to clause (ii) above, 45 days after the date on which Holdings and
Anvil receive the notice specified in clause (ii) above, a shelf registration
statement pursuant to Rule 415 under the Securities Act (which may be an
amendment to the Exchange Offer Registration Statement (in either event, the
"Shelf Registration Statement")), relating to all Transfer Restricted
Securities the Holders of which shall have provided the information required
pursuant to Section 4(b) hereof, and shall
(y) use their reasonable best efforts to cause such Shelf Registration
Statement to become effective on or prior to (1) in the case of a
Registration Statement filed pursuant to clause (i) above, 120 days after the
date on which Holdings and Anvil become obligated to file such Shelf
Registration Statement and (2) in the case of a Registration Statement filed
pursuant to clause (ii) above, 120 days after the date on which Holdings and
Anvil receive the notice specified in clause (ii) above. If, after Holdings
and Anvil have filed an Exchange Offer Registration Statement which satisfies
the requirements of Section 3(a) above, Holdings and Anvil are required to
file and make effective a Shelf Registration Statement solely because the
Exchange Offer shall not be permitted under applicable federal law, then the
filing of the Exchange Offer Registration Statement shall be deemed to
satisfy the requirements of clause (x) above. Such an event shall have no
effect on the requirements of clause (y) above, or on the Effectiveness
Target Date as defined in Section 5 below.
Each of Holdings and Anvil shall use its reasonable best efforts to keep
such Shelf Registration Statement continuously effective, supplemented and
amended as required by the provisions of Sections 6(b) and (c) hereof for a
period of three years from the effective date thereof (as extended pursuant to
Section 6(c)(i) or such shorter period that will terminate when all Senior Notes
are no longer Transfer Restricted Securities or all Senior Notes covered by such
Shelf Registration Statement have been sold pursuant thereto, and to ensure that
such Shelf Registration Statement conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of three years from the
effective date thereof (as extended pursuant to Section 6(c)(i)) or such shorter
period that will terminate when all Senior Notes are no longer Transfer
Restricted Securities or all Senior Notes covered by such Shelf Registration
Statement have been sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
Holdings and Anvil in writing, within 20 Business
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Days after receipt of a request therefor, such information as Holdings and Anvil
reasonably may request for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein. No Holder of
Transfer Restricted Securities shall be entitled to Liquidated Damages pursuant
to Section 5 hereof unless and until such Holder shall have used its best
efforts to provide all such reasonably requested information. Each Holder as to
which any Shelf Registration Statement is being effected agrees to furnish
promptly to Holdings and Anvil all information required to be disclosed in order
to make the information previously furnished to Holdings and Anvil by such
Holder not materially misleading.
(c) Restrictions on Sale of Certain Securities by Others. Holdings and
Anvil agree not to, and to use their reasonable best efforts to cause their
affiliates not to, offer, sell, contract to sell or grant any option to purchase
or otherwise transfer or dispose of any debt security issued by Holdings or
Anvil or any security convertible into or exchangeable or exercisable for any
such debt security, including a sale pursuant to Rule 144 under the Securities
Act, during the 30- day period beginning on the closing date of each
Underwritten Offering made pursuant to the Shelf Registration Statement (except
as part of such Underwritten Registration).
SECTION 5. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this Agreement are
not filed with the Commission on or prior to the date specified for such filing
in Section 3 or 4 of this Agreement, (ii) any of such Registration Statements
have not been declared effective by the Commission on or prior to the date
specified for such effectiveness in Section 3 or 4 of this Agreement (the
"Effectiveness Target Date"), (iii) the Exchange Offer has not been Consummated
within 30 days of the Effectiveness Target Date with respect to the Exchange
Offer Registration Statement or (iv) subject to the provisions of Section
6(c)(i) below, any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded immediately by a
post-effective amendment to such Registration Statement that cures such failure
and that is itself immediately declared effective (each such event referred to
in clauses (i) through (iv), a "Registration Default"), Holdings and Anvil
hereby, jointly and severally, agree to pay liquidated damages to each Holder of
Transfer Restricted Securities, during the first 90-day period immediately
following the occurrence of such Registration Default, in an amount equal to
$.05 per week per $1,000 principal amount of the Transfer Restricted Securities
held by such Holder for so long as the Registration Default continues. The
amount of liquidated damages payable to each Holder shall increase by an
additional $.05 per week per $1,000 principal amount of Transfer Restricted
Securities held by such Holder for each subsequent 90-day period, up to a
maximum amount of liquidated damages of $.30 per week per $1,000 principal
amount of Transfer Restricted Securities held by such Holder. All accrued
liquidated damages shall be paid by Holdings and Anvil on each Damages Payment
Date (i) to the Global Note Holder by wire transfer of immediately available
funds and (ii) to Holders of Certificated Securities by wire transfer to the
accounts specified by them or by mailing checks to their registered addresses if
no such accounts have been specified, as provided in the Indenture. Following
the cure of all Registration Defaults relating to any particular Transfer
Restricted Securities, the accrual of liquidated damages with respect to such
Transfer Restricted Securities will cease.
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All obligations of Holdings and Anvil set forth in the preceding paragraph
that are outstanding with respect to any Transfer Restricted Security at the
time such security ceases to be a Transfer Restricted Security shall survive
until such time as all such obligations with respect to such security shall have
been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the Exchange
Offer, Holdings and Anvil shall comply with all of the provisions of Section
6(c) below, shall use their reasonable best efforts to effect such exchange to
permit the sale of Transfer Restricted Securities being sold in accordance with
the intended method or methods of distribution thereof, and shall comply with
all of the following provisions:
(i) If in the reasonable opinion of counsel to Holdings and Anvil
there is a question as to whether the Exchange Offer is permitted by
applicable law, Holdings and Anvil hereby agree to seek a no-action letter or
other favorable decision from the Commission allowing Holdings and Anvil to
Consummate an Exchange Offer for such Series A Senior Notes. Holdings and
Anvil hereby agree to pursue the issuance of such a decision to the
Commission staff level, but shall not be required to take commercially
unreasonable action to effect a change of Commission policy. Holdings and
Anvil hereby agree, however, (A) to participate in telephonic conferences
with the Commission, (B) to deliver to the Commission staff an analysis
prepared by counsel to Holdings and Anvil setting forth the legal bases, if
any, upon which such counsel has concluded that such an Exchange Offer should
be permitted and (C) to pursue diligently a resolution (which need not be
favorable) by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer Restricted
Securities shall furnish, upon the request of Holdings and Anvil, prior to
the Consummation thereof, a written representation to Holdings and Anvil
(which may be contained in the letter of transmittal contemplated by the
Exchange Offer Registration Statement) to the effect that such Holder (A) is
not an affiliate of Holdings or Anvil, (B) is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with any person
to participate in, a distribution of the Series B Senior Notes to be issued
in the Exchange Offer and (C) is acquiring the Series B Senior Notes in its
ordinary course of business. Each Holder hereby acknowledges and agrees (X)
that any Broker-Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in effect on the date
of this Agreement rely on the position of the Commission enunciated in ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the Commission's
letter to Shearman & Sterling dated July 2, 1993, and similar no-action
letters (including any no-action letter obtained pursuant to clause (i)
above), and (2) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale
transaction and (Y) that such a secondary resale transaction should be
covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as applicable, of
Regulation S-K if the resales are
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of Series B Senior Notes obtained by such Holder in exchange for Series A
Senior Notes acquired by such Holder directly from Anvil.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, Holdings and Anvil shall provide, if requested by the Commission,
a supplemental letter to the Commission (A) stating that Holdings and Anvil
are registering the Exchange Offer in reliance on the position of the
Commission enunciated in Exxon Capital Holdings Corporation (available May
13, 1988), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and, if
applicable, any no-action letter obtained pursuant to clause (i) above and
(B) including a representation that Holdings and Anvil have not entered into
any arrangement or understanding with any Person to distribute the Series B
Senior Notes (and the related Holdings Guarantee) to be received in the
Exchange Offer and that, to the best of Holdings' and Anvil's information and
belief, each Holder participating in the Exchange Offer is acquiring the
Series B Senior Notes (and the related Holdings Guarantee) in its ordinary
course of business and has no arrangement or understanding with any Person to
participate in the distribution of the Series B Senior Notes (and the related
Holdings Guarantee) received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, Holdings and Anvil shall comply with all of the
provisions of Section 6(c) below and shall use their best efforts to effect such
registration to permit the sale of the Transfer Restricted Securities being sold
in accordance with the intended method or methods of distribution thereof, and
pursuant thereto Holdings and Anvil as expeditiously as possible will prepare
and file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Securities Act, which form shall
be available for the sale of the Transfer Restricted Securities in accordance
with the intended method or methods of distribution thereof.
(c) General Provisions. In connection with any Registration Statement and
any Prospectus required by this Agreement in order to permit the sale or resale
of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to permit resales of
Senior Notes by Broker-Dealers), Holdings and Anvil shall:
(i) use their reasonable best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this Agreement, as
applicable. Upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not to be effective and usable for
resale of Transfer Restricted Securities during the period required by this
Agreement, Holdings and Anvil promptly shall file an appropriate amendment to
such Registration Statement, in the case of clause (A), correcting any such
misstatement or omission, and, in the case of either clause (A) or (B), use
their best efforts to cause such amendment to be declared effective and such
Registration Statement and the related Prospectus to become usable for their
intended purpose(s) as soon as practicable thereafter. Notwithstanding the
foregoing, Holdings and Anvil may suspend the effectiveness of (1) the
Registration Statement relating to the Exchange Offer for up to 10 days
during the 180-day period referred to in Section 3(c) and
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(2) the Shelf Registration Statement for up to 30 days in each year during
which such Shelf Registration Statement is required to be effective and
usable hereunder (measured from the date of effectiveness of such Shelf
Registration Statement to successive anniversaries thereof) if (A) either
(y)(I) Holdings and Anvil shall be engaged in a material acquisition or
disposition and (II)(aa) such acquisition or disposition is required to be
disclosed in the Registration Statement, the related Prospectus or any
amendment or supplemental thereto, or the failure by Holdings and Anvil to
disclose such transaction in the Registration Statement or related
Prospectus, or any amendment or supplemental thereto, as then amended or
supplemented, would cause such Registration Statement, Prospectus or
amendment or supplement thereto, to contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statement therein not misleading, in the light of the circumstances under
with they were made, (bb) information regarding the existence of such
acquisition or disposition has not then been publicly disclosed by or on
behalf of Holdings and Anvil and (cc) a majority of the Board of Directors of
Holdings or Anvil determines in the exercise of its good faith judgment that
disclosure of such acquisition or disposition would not be in the best
interest of Holdings or Anvil and its subsidiaries or would have a material
adverse effect on the consummation of such acquisition or disposition or (z)
a majority of the Board of Directors of Holdings or Anvil determines in the
exercise of its good faith judgment that compliance with the disclosure
obligations set forth in this Section 6(c)(i) would otherwise have a material
adverse effect on Holdings or Anvil and its subsidiaries, taken as a whole,
and (B) Holdings and Anvil notify the Holders within two Business Days after
such Board of Directors makes the relevant determination set forth in clause
(A); provided, however, that in each such case the applicable period
specified in Section 3 and 4 hereof during which the applicable Registration
Statement is required to be kept effective and usable shall be extended by
the number of days during which such effectiveness was suspended pursuant to
the foregoing;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary
to keep the Registration Statement effective for the applicable period set
forth in Section 3 or 4 hereof, as applicable, or such shorter period as will
terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to
be filed pursuant to Rule 424 under the Securities Act, and to comply fully
with the applicable provisions of Rules 424 and 430A under the Securities Act
in a timely manner; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended method
or methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders and, if
requested by such Persons, confirm such advice in writing, (A) when the
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to any Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any request by
the Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating thereto,
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(C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Securities Act or of
the suspension by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for any of the preceding purposes, (D) of
the existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document incorporated
by reference therein untrue, or that requires the making of any additions to
or changes in the Registration Statement or the Prospectus in order to make
the statements therein not misleading. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities or
Blue Sky laws, Holdings and Anvil shall use their best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(iv) furnish to each Initial Purchaser, each of the selling Holders
and each of the underwriter(s), if any, before filing with the Commission,
copies of any Registration Statement or any Prospectus included therein or
any amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review of such Holders and underwriter(s), if any, for a
period of at least five Business Days, and neither Holdings nor Anvil will
file any such Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus (including all
such documents incorporated by reference) to which a selling Holder of
Transfer Restricted Securities covered by such Registration Statement or the
underwriter(s), if any, shall object within five Business Days after the
receipt thereof. A selling Holder or underwriter, if any, shall be deemed to
have objected reasonably to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission or fails to comply with the
applicable requirements of the Securities Act;
(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the selling Holders and to the
underwriter(s), if any, make Holdings' and Anvil's representatives available
for discussion of such document and other customary due diligence matters,
and include such information in such document prior to the filing thereof as
such selling Holders or underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for inspection by the
selling Holders, any underwriter participating in any disposition pursuant to
such Registration Statement, and any attorney or accountant retained by such
selling Holders or any of the underwriter(s), all financial and other
records, pertinent corporate documents and properties of Holdings and Anvil
and cause Holdings' and Anvil's officers, directors and employees to supply
all information reasonably requested by any such Holder, underwriter,
attorney or accountant in connection with such Registration Statement
subsequent to the filing thereof and prior to its effectiveness;
11
(vii) if requested by any selling Holders or the underwriter(s), if
any, promptly incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post- effective amendment if necessary, such
information as such selling Holders and underwriter(s), if any, reasonably
may request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Transfer Restricted
Securities, information with respect to the principal amount of Transfer
Restricted Securities being sold to any such underwriter(s), the purchase
price being paid therefor and any other terms of the Transfer Restricted
Securities to be sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as practicable
after Holdings and Anvil are notified of the matters to be incorporated in
such Prospectus supplement or post-effective amendment;
(viii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating agencies, if
so requested by the Holders of a majority in aggregate principal amount of
Senior Notes covered thereby or the underwriter(s), if any;
(ix) furnish to each selling Holder and each of the underwriter(s),
if any, without charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
(x) deliver to each selling Holder and each of the underwriter(s),
if any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; Holdings and Anvil hereby consent to the use
of the Prospectus and any amendment or supplement thereto by each of the
selling Holders and each of the underwriter(s), if any, in connection with
the offering and the sale of the Transfer Restricted Securities covered by
the Prospectus or any amendment or supplement thereto;
(xi) enter into such agreements (including an underwriting
agreement), and make such representations and warranties, and take all such
other actions in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement, all to such extent as
may be requested by any Initial Purchaser or by any Holder of Transfer
Restricted Securities or underwriter in connection with any sale or resale
pursuant to any Registration Statement contemplated by this Agreement; and
whether or not an underwriting agreement is entered into and whether or not
the registration is an Underwritten Registration, each of Holdings and Anvil
shall:
(A) furnish to each Initial Purchaser, each selling Holder and each
underwriter, if any, in such substance and scope as they may request and
as are customarily made by issuers to underwriters in primary underwritten
offerings, upon the date of the Consummation of the Exchange Offer and, if
applicable, upon the effectiveness of the Shelf Registration Statement:
12
(1) a certificate, dated the date of Consummation of the Exchange
Offer or the date of effectiveness of the Shelf Registration Statement,
as the case may be, signed by (x) the President or any Vice President
and (y) a principal financial or accounting officer of each of Holdings
and Anvil, confirming, as of the date thereof, the matters set forth in
paragraphs (a), (b), (c) and (d) and (e) of Section 7 of the Purchase
Agreement and such other matters as such parties may reasonably
request;
(2) an opinion, dated the date of Consummation of the Exchange
Offer or the date of effectiveness of the Shelf Registration Statement,
as the case may be, of counsel for Holdings and Anvil covering the
matters set forth in paragraphs (g) and (h) of Section 7 of the
Purchase Agreement and such other matters as the Holders and/or
managing underwriter(s) reasonably may request, and in any event
including a statement to the effect that such counsel has participated
in conferences with officers and other representatives of Holdings and
Anvil, representatives of the independent public accountants for
Holdings and Anvil, the Initial Purchasers' representatives and the
Initial Purchasers' counsel in connection with the preparation of such
Registration Statement and the related Prospectus and have considered
the matters required to be stated therein and the statements contained
therein, although such counsel has not independently verified the
accuracy, completeness or fairness of such statements; and that on the
basis of the foregoing (relying upon facts provided to such counsel by
officers and other representatives of Holdings and Anvil and without
independent check or verification), that no facts came to such
counsel's attention that caused such counsel to believe that the
applicable Registration Statement, at the time such Registration
Statement or any post-effective amendment thereto became effective,
and, in the case of the Exchange Offer Registration Statement, as of
the date of Consummation, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus contained in such Registration Statement as of its date and,
in the case of the opinion dated the date of Consummation of the
Exchange Offer, as of the date of Consummation, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Without
limiting the foregoing, such counsel may state further that such
counsel assumes no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial data included in
any Registration Statement contemplated by this Agreement or the
related Prospectus; and
(3) customary comfort letters, dated as of the date of
Consummation of the Exchange Offer or the date of effectiveness of the
Shelf Registration Statement, as the case may be, from Holdings' and
Anvil's past and present independent accountants, in the customary form
and covering matters of the type customarily covered in comfort letters
to underwriters in connection with primary underwritten offerings, and
affirming the matters set forth in the comfort letters delivered
pursuant to Section 7(l) of the Purchase Agreement, without exception;
13
(B) set forth in full or incorporate by reference in the underwriting
agreement, if any, the indemnification provisions and procedures of
Section 8 hereof with respect to all parties to be indemnified pursuant to
said Section; and
(C) deliver such other documents and certificates as reasonably may be
requested by such parties to evidence compliance with clause (A) above and
with any customary conditions contained in the underwriting agreement or
other agreement entered into by Holdings and Anvil pursuant to this clause
(xi), if any.
The provisions of this clause (A) shall be applicable at each closing
under such underwriting or similar agreement, as and to the extent required
thereunder and, if at any time the representations and warranties of Holdings
and Anvil contemplated in clause (A)(1) above cease to be true and correct,
Holdings and Anvil promptly shall so advise the Initial Purchasers and the
underwriter(s), if any, and each selling Holder and, if requested by such
Persons, shall confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification of
the Transfer Restricted Securities under the securities or Blue Sky laws of
such jurisdictions as the selling Holders or underwriter(s) may request and
do any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted Securities
covered by the Shelf Registration Statement; provided, however, that neither
Holdings nor Anvil shall be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that would
subject it to the service of process in suits or to taxation, other than as
to matters and transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xiii) upon the request of any Holder of Series A Senior Notes
covered by the Shelf Registration Statement, issue Series B Senior Notes,
having an aggregate principal amount equal to the aggregate principal amount
of Series A Senior Notes surrendered to Anvil by such Holder in exchange
therefor or being sold by such Holder, such Series B Senior Notes to be
registered in the name of such Holder or in the name of the purchaser(s) of
such Senior Notes, as the case may be; in return, the Series A Senior Notes
held by such Holder shall be surrendered to Anvil for cancellation;
(xiv) cooperate with the selling Holders and the underwriter(s), if
any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends, and enable such Transfer Restricted Securities to be in
such denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two Business Days prior to any
sale of Transfer Restricted Securities made by such underwriter(s);
(xv) use their best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary in order to enable the seller or sellers thereof
14
or the underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xii)
above;
(xvi) if any fact or event contemplated by clause (c)(iii)(D) above
shall exist or have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of Transfer Restricted
Securities, the Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein not misleading; provided, however, Holdings and Anvil shall not be
required to comply with this clause (xvi) if, and only for so long as (A)
either (l)(y) Holdings and Anvil shall be engaged in a material acquisition
or disposition and (z)(I) such acquisition or disposition is required to be
disclosed in the Registration Statement, the related Prospectus or any
amendment or supplement thereto, or the failure by Holdings and Anvil to
disclose such transaction in the Registration Statement or related
Prospectus, or any amendment or supplement thereto, as then amended or
supplemented, would cause such Registration Statement, Prospectus or
amendment or supplement thereto, to contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein no misleading, in the light of the circumstances under
with they were made, (II) information regarding the existence of such
acquisition or disposition has not been publicly disclosed by or on behalf of
Holdings and Anvil and (III) a majority of the Board of Directors of Holdings
or Anvil determines in the exercise of its good faith judgment that
disclosure of such acquisition or disposition would not be in the best
interests of Holdings and Anvil and its subsidiaries or would have a material
adverse effect on the consummation of such acquisition or disposition or (2)
a majority of the Board of Directors of Holdings or Anvil determines in the
exercise of its good faith judgment that compliance with the disclosure
obligations set forth in this clause (xvi) would otherwise have a material
adverse effect on Holdings and Anvil and its subsidiaries, taken as whole,
and (B) Anvil notifies the Holders within two Business Days after the Board
of Directors makes the relevant determination set forth in clause (A);
provided, however, that in each such case the period specified in Section 3
and 4 hereof during which the applicable Registration Statement is required
to be kept effective and usable shall be extended by the number of days
during which such effectiveness was suspended pursuant to the foregoing;
(xvii) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of the Registration Statement, and provide
the Trustee under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the
Depository Trust Company;
(xviii) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of the
NASD, and use their reasonable best efforts to cause such Registration
Statement to become effective and approved by such governmental agencies or
authorities as may be necessary to enable the Holders selling Transfer
Restricted Securities to Consummate the disposition of such Transfer
Restricted Securities;
15
(xix) otherwise use their reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to their security holders, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which need not be
audited) for the twelve-month period (A) commencing at the end of any fiscal
quarter in which Transfer Restricted Securities are sold to underwriters in a
firm or best efforts Underwritten Offering or (B) if not sold to underwriters
in such an offering, beginning with the first month of Holdings' and Anvil's
first fiscal quarter commencing after the effective date of the Registration
Statement;
(xx) cause the Indenture to be qualified under the TIA not later than
the effective date of the first Registration Statement required by this
Agreement, and, in connection therewith, cooperate with the Trustee and the
Holders of Senior Notes to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance with the terms
of the TIA; and execute and use their best efforts to cause the Trustee to
execute, all documents that may be required to effect such changes and all
other forms and documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner;
(xxi) use their reasonable best efforts to cause all Transfer
Restricted Securities covered by the Registration Statement to be listed on
each securities exchange on which similar securities issued by Holdings and
Anvil are then listed if requested by the Holders of a majority of the
outstanding shares or aggregate principal amount of Series A Senior Notes, or
the underwriters, if any; and
(xxii) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Section 13 and
Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security that,
upon receipt of any notice from Holdings and Anvil of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof,
or until it is advised in writing (the "Advice") by Holdings and Anvil that the
use of the Prospectus may be resumed, and has received copies of any additional
or supplemental filings that are incorporated by reference in the Prospectus. If
so directed by Holdings and Anvil, each Holder will deliver to Anvil (at Anvil's
expense) all copies, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Transfer Restricted Securities that
was current at the time of receipt of such notice. In the event Holdings and
Anvil shall give any such notice, the time period regarding the effectiveness of
such Registration Statement set forth in Section 3 or 4 hereof, as applicable,
shall be extended by the number of days during the period from and including the
date of the giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and
including the date when each selling Holder covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(xvi) hereof or shall have received the
Advice.
16
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to Holdings' and Anvil's performance of or
compliance with this Agreement will be borne by Holdings and Anvil, regardless
of whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and
expenses (including filings made by any Initial Purchaser or Holder with the
NASD (and, if applicable, the fees and expenses of any "qualified independent
underwriter" and its counsel that may be required by the rules and regulations
of the NASD)); (ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws; (iii) all expenses of printing (including
printing certificates for the Series B Senior Notes to be issued in the Exchange
Offer and printing of Prospectuses), messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for Anvil and, subject to
Section 7(b) below, the Holders of Transfer Restricted Securities; (v) all
application and filing fees in connection with listing Senior Notes on a
national securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of Holdings and Anvil (including the expenses of
any special audit and comfort letters required by or incident to such
performance).
Each of Holdings and Anvil will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by Holdings or Anvil.
(b) Holdings and Anvil, jointly and severally, will reimburse the Initial
Purchasers and the Holders for the reasonable fees and disbursements of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, acting for the Initial Purchasers or Holders in connection
with the offer and sale of the Senior Notes pursuant to each Registration
Statement.
SECTION 8. INDEMNIFICATION
(a) Holdings and Anvil, jointly and severally, agree to indemnify and hold
harmless (i) each Holder and (ii) each person, if any, who controls (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
any Holder (any of the persons referred to in this clause (ii) being hereinafter
referred to as a "controlling person") and (iii) the respective officers,
directors, partners, employees, representatives and agents of each Holder and
each controlling person (any person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as an "Indemnified Holder") to the fullest extent
lawful, from and against any and all losses, claims, damages, judgments, actions
and other liabilities (collectively, "Liabilities"), and will reimburse each
Indemnified Holder for all fees and expenses (including, without limitation, the
reasonable fees and expenses of counsel to any Indemnified Holder)
(collectively, "Expenses") as they are incurred in investigating, preparing,
pursuing or defending any claim or action, or any proceeding or investigation by
any governmental agency or body, whether or not in connection with pending or
threatened litigation and whether or not any Indemnified Holder is a party
(collectively, "Actions"), directly or indirectly caused by, related to, based
upon, arising out of or in connection with any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement,
preliminary Prospectus or Prospectus (including any
17
amendments thereof and supplements thereto), or by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except insofar as such Liabilities
or Expenses are caused by an untrue statement or omission or alleged untrue
statement or omission (i) that is made in reliance upon and in conformity with
information relating to an Indemnified Holder furnished in writing to Holdings
or Anvil by such Indemnified Holder expressly for use therein or (ii) that is
made in any preliminary Prospectus if a copy of the final Prospectus (as then
amended or supplemented) was not sent or given by or on behalf of the Holder to
the person asserting any such loss, claim, damage, liability or expense, if
required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Senior Notes and the final prospectus (as then
amended or supplemented) would have corrected such untrue statement or omission.
Holdings and Anvil, jointly and severally, also agree to reimburse each
Indemnified Holder for all Expenses as incurred in connection with enforcing
such Indemnified Holder's rights under this Agreement (including, without
limitation, its rights under this Section 8); provided, that if either Anvil or
Holdings reimburses a Holder hereunder for any Expenses, such Holder hereby
agrees to refund such reimbursement of Expenses to the extent that the Holder is
not entitled to be indemnified hereunder. Holdings or Anvil shall notify each
Indemnified Holder promptly of the institution, threat or assertion of any
Action in connection with the matters addressed by this Agreement which involves
Holdings or Anvil or an Indemnified Holder.
Upon receipt by an Indemnified Holder of notice of an Action against such
Indemnified Holder with respect to which indemnity may be sought under this
Section 8, such Indemnified Holder shall promptly notify Holdings and Anvil in
writing; provided that the failure to so notify Anvil shall not relieve Holdings
and Anvil from any liability which Anvil may have on account of this indemnity
or otherwise, except to the extent Holdings and Anvil shall have been materially
prejudiced by such failure. Holdings and Anvil shall, if requested by such
Indemnified Holder, assume the defense of any such Action, including the
employment of counsel reasonably satisfactory to such Indemnified Holder. Any
Indemnified Holder shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Holder, unless: (i) Holdings
and Anvil have failed promptly to assume the defense and employ counsel
reasonably satisfactory to such Indemnified Holder, (ii) the indemnifying party
has authorized the employment of counsel for such Indemnified Holder at the
expense of the indemnifying party or (iii) the named parties to any such Action
(including any impleaded parties) include such Indemnified Holder and Holdings
and Anvil, and such Indemnified Holder shall have been advised by counsel that
there may be one or more legal defenses available to it which are different from
or in addition to those available to Holdings and Anvil; provided that Holdings
and Anvil shall not in such event be responsible hereunder for the fees and
expenses of more than one firm of separate counsel in connection with any Action
in the same jurisdiction, in addition to any local counsel. Holdings and Anvil
shall not be liable for any settlement of any Action effected without its
written consent (which shall not be unreasonably withheld) and Holdings and
Anvil agree to indemnify and hold harmless any Indemnified Holder from and
against any Liability or Expense by reason of any settlement of any Action
effected with the written consent of Holdings and Anvil. Notwithstanding the
immediately preceding sentence, if at any time an Indemnified Holder shall have
requested Holdings and Anvil to reimburse the
18
Indemnified Holder for fees and expenses of counsel as contemplated by the third
sentence of this paragraph, each of Holdings and Anvil agree that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than sixty (60) Business Days after
receipt by Holdings and Anvil of the aforesaid request and (ii) Holdings and
Anvil shall not have reimbursed the Indemnified Holder in accordance with such
request prior to the date of such settlement. In addition, Holdings and Anvil
will not, without the prior written consent of each Indemnified Holder, settle
any pending or threatened Action in respect of which indemnification or
contribution may be sought hereunder (whether or not any Indemnified Holder is a
party thereto), unless such settlement includes an unconditional release of such
Indemnified Holder from all Liabilities on claims that are the subject matter of
such proceeding.
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless Holdings and Anvil, and its
directors, officers, and any person controlling (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) Holdings and Anvil,
and the respective officers, directors, partners, employees, representatives and
agents of each such person, to the same extent as the foregoing indemnity from
Holdings and Anvil to each of the Indemnified Holders, but only with respect to
Liabilities and Expenses incurred in investigating, preparing, pursuing or
defending Actions directly or indirectly caused by, related to, based upon,
arising out of or in connection with any untrue statement or omission or alleged
untrue statement of a material fact contained in any Registration Statement,
preliminary Prospectus or Prospectus (including any amendments thereof and
supplements thereto) that was made in reliance upon and in conformity with
information relating to such Holder furnished in writing by or on behalf of such
Holder expressly for use in any Registration Statement or Prospectus or any
amendment or supplement thereto. In case any Action shall be brought against
Holdings and Anvil or their directors or officers or any such controlling person
in respect of which indemnity may be sought against a Holder of Transfer
Restricted Securities, such Holder shall have the rights and duties given
Holdings and Anvil and Holdings and Anvil or its directors or officers or such
controlling person shall have the rights and duties given to each Holder by the
preceding paragraph. In no event shall the liability of any selling Holder
hereunder be greater than the amount by which the total proceeds received by
such Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation exceeds the sum of (A) the amount paid by such Holder
for such Registrable Securities plus (B) the amount of any damages which such
Holder has otherwise been required to pay by reason of a claim or action based
on such information.
(c) If the indemnification provided for in this Section 8 is unavailable
to an indemnified party under Section 8(a) or Section 8(b) hereof (other than by
reason of exceptions provided in those Sections) in respect of any Liabilities
or Expenses referred to therein, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such Liabilities or Expenses
(i) in such proportion as is appropriate to reflect the relative benefits
received by Anvil on the one hand and the Holders on the other hand from their
sale of Transfer Restricted Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of Holdings and Anvil and of the Indemnified
Holder, as well as any
19
other relevant equitable considerations. The relative benefits received by
Holdings and Anvil and any Indemnified Holder shall be deemed to be in the same
proportion as (x) the total proceeds from the offering of Senior Notes to the
Initial Purchasers (net of discounts but before deducting expenses) received by
Holdings and Anvil and (y) the total proceeds received by such Indemnified
Holder upon its sale of Transfer Restricted Services which otherwise would give
rise to the indemnification obligation, respectively. The relative fault of
Holdings and Anvil on the one hand and of the Indemnified Holder on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by Holdings and Anvil
or by the Indemnified Holder and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
Holdings and Anvil and each Holder of Transfer Restricted Securities agree
that it would not be just and equitable if contribution pursuant to this Section
8(c) were determined by pro rata allocation (even if the Holders were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the Liabilities and Expenses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth in
the second paragraph of Section 8(a), any legal or other fees or expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any Action. Notwithstanding any other provision of this ▇▇▇▇▇▇▇ ▇,
▇▇▇▇ of the Holders (and its related Indemnified Holders) shall be required to
contribute, in the aggregate, an amount in excess of the amount by which the
total proceeds received by such Holder with respect to the sale of its Series A
Senior Notes giving rise to such Liabilities or Expenses exceeds the sum of (A)
the amount paid by such Holder for such Series A Senior Notes plus (B) the
amount of any damages which such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 8(c) are several in
proportion to the principal amount of Series A Senior Notes held by each of the
Holders hereunder and not joint.
SECTION 9. RULE 144A
Holdings and Anvil hereby agree with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Securities Act in order to effect resales of such
Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
20
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided that such investment bankers and managers must be
reasonably satisfactory to Holdings and Anvil.
SECTION 12. OBLIGATIONS OF SUBSIDIARY GUARANTORS
Cottontops shall have the same obligations hereunder as are set forth as
applicable to Holdings. Without limiting the generality of the foregoing, the
obligations of Holdings with respect to the registration of the Holdings
Guarantee shall apply with equal force to the registration by Cottontops of its
guarantee of the obligations of Anvil under the Senior Notes. Anvil and Holdings
agree to cause any other subsidiary which becomes a Subsidiary Guarantor (as
defined in the Indenture) pursuant to the Indenture prior to the completion of
the Exchange Offer to comply with the terms of this Agreement on the same basis
as Cottontops.
SECTION 13. MISCELLANEOUS
(a) Remedies. Each Holder, in addition to being entitled to exercise all
rights provided herein, in the Indenture, the Purchase Agreement or granted by
law, including recovery of liquidated or other damages, will be entitled to
specific performance of its rights under this Agreement. Holdings and Anvil
agree that a breach of any of the provisions of this Agreement will cause
irreparable injury to the Holders, that the Holders have no adequate remedy by
law in respect of such breach and, as a consequence, that each and every
provision contained in this Agreement shall be specifically enforceable against
Holdings and Anvil, and Holdings and Anvil hereby waive and agree not to assert
as a defense to the request or granting of specific performance of any such
provision that any breach of any such provision does not or would not cause
irreparable harm or is or would be compensable by an award of money damages in
respect of such breach.
(b) No Inconsistent Agreements. Holdings and Anvil will not enter, on or
after the date of this Agreement, into any agreement with respect to its
securities that would be inconsistent with the rights granted to the Holders in
this Agreement or otherwise would conflict with the provisions hereof. Holdings
and Anvil previously have not entered into any agreement granting any
registration rights with respect to its securities to any Person. The rights
granted to the
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Holders hereunder do not in any way conflict with and are not inconsistent in
any way with the rights granted to the holders of Holdings' and Anvil's
securities under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Senior Notes. Holdings and Anvil will not
take any action, or permit any change to occur, with respect to the Senior Notes
that would materially and adversely affect the ability of the Holders to
Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless Holdings and Anvil have obtained
the written consent of Holders of a majority of the outstanding principal amount
of Transfer Restricted Securities. Notwithstanding the foregoing, the Holders of
a majority of the outstanding principal amount of Transfer Restricted Securities
being tendered or registered may give a waiver or consent to departure from the
provisions hereof, which waiver or consent relates exclusively to the rights of
Holders whose securities are being tendered pursuant to the Exchange Offer and
does not directly or indirectly affect the rights of other Holders whose
securities are not being tendered pursuant to such Exchange Offer.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, then at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to Anvil, Holdings or Cottontops, then:
Anvil Knitwear, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
Citicorp Center
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
and with copies to:
399 Venture Partners, Inc.
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▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
AttentionDavid ▇. ▇▇▇▇▇▇
and
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Bruckmann, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Co., Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
AttentionStephen ▇. ▇▇▇▇▇▇▇
All such notices and communications shall be deemed to have been duly
given as follows: (A) at the time delivered by hand, if personally delivered;
(B) five Business Days after being deposited in the mail, postage prepaid, if
mailed; (C) when answered back, if telexed; (D) when receipt acknowledged, if
telecopied; and (E) on the next Business Day, if timely delivered to an air
courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
delivered concurrently to the Trustee, at the address specified in the
Indenture, by the Person giving the same.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the other Operative
Documents (as defined in the Purchase Agreement) is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by Anvil with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ANVIL KNITWEAR, INC.
By:
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Name:
Title
ANVIL HOLDINGS, INC.
By:
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Name:
Title
COTTONTOPS,INC.
By:
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Name:
Title
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Accepted and agreed to as of
the date first above written:
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By:
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Name:
Title
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SECURITIES, INC.
By:
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Name:
Title
NATIONSBANC CAPITAL
NARKETS, INC.
By:
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Name:
Title