EXHIBIT 4-A
▇▇▇▇ CORPORATION
$250,000,000
10 1/8% Notes due 2010
Purchase Agreement
March 6, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
As Representative of the
several Initial Purchasers
listed in Schedule 1 hereto
Ladies and Gentlemen:
▇▇▇▇ Corporation, a Virginia corporation (the "Company"), proposes to
issue and sell to the several Initial Purchasers listed in Schedule 1 hereto
(the "Initial Purchasers") for whom you are acting as Representative (the
"Representative") $250,000,000 principal amount of its 10 1/8% Notes due 2010
(the "Notes"). The Notes will be issued pursuant to an Indenture to be dated as
of March 11, 2002 between the Company and Citibank, N.A., as trustee (the
"Trustee").
The Notes will be sold to the Initial Purchasers without being
registered under the Securities Act of 1933, as amended (the "Securities Act"),
in reliance upon an exemption therefrom. The Company has prepared a preliminary
offering memorandum dated February 26, 2002 (the "Preliminary Offering
Memorandum") and will prepare an offering memorandum dated the date hereof (the
"Offering Memorandum") setting forth information concerning the Company and the
Notes. References herein to the Preliminary Offering Memorandum and the Offering
Memorandum shall be deemed to refer to and include any document incorporated by
reference therein. Copies of the Preliminary Offering Memorandum have been, and
copies of the Offering Memorandum will be, delivered by the Company to the
Initial Purchasers pursuant to the terms of this Agreement. The Company hereby
confirms that it has authorized the use of the Preliminary Offering Memorandum
and the Offering Memorandum in connection with the offering and resale of the
Notes by the Initial Purchasers in the manner contemplated by this Agreement.
Holders of the Notes (including the Initial Purchasers and their direct
and indirect transferees) will be entitled to the benefits of a Registration
Rights Agreement, substantially in
the form attached hereto as Exhibit A (the "Registration Rights Agreement"),
pursuant to which the Company will agree to file one or more registration
statements with the Securities and Exchange Commission (the "Commission")
providing for the registration under the Securities Act of the Notes or the
Exchange Notes referred to (and as defined in) the Registration Rights
Agreement.
The Company hereby confirms its agreement with the Initial Purchasers
concerning the purchase and resale of the Notes, as follows:
1. Purchase and Resale of the Notes.
(a) The Company agrees to issue and sell the Notes to the several
Initial Purchasers as provided in this Agreement, and each Initial Purchaser, on
the basis of the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees to purchase from the Company,
severally and not jointly, the principal amount of Notes set forth opposite such
Initial Purchaser's name in Schedule 1 hereto under the column "Principal Amount
of Notes" at a price equal to 96.784% of the principal amount thereof plus
accrued interest, if any, from March 11, 2002 to the date of payment and
delivery. The Company will not be obligated to deliver any of the Notes except
upon payment for all the Notes to be purchased as provided herein.
(b) The Company understands that the Initial Purchasers intend to offer
the Notes for resale on the terms set forth in the Offering Memorandum. Each
Initial Purchaser, severally and not jointly, represents, warrants and agrees
that:
(i) it has not solicited offers for, or offered or sold, and
will not solicit offers for, or offer or sell, the Notes by means of
any form of general solicitation or general advertising within the
meaning of Rule 502(c) of Regulation D under the Securities Act
("Regulation D") or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act; and
(ii) it has not solicited offers for, or offered or sold, and
will not solicit offers for, or offer or sell, the Notes as part of
their initial offering except:
(A) within the United States to persons whom it
reasonably believes to be qualified institutional buyers, as
defined in Rule 144A under the Securities Act ("Rule 144A"),
in transactions pursuant to Rule 144A, and in connection with
each such sale, it has taken or will take reasonable steps to
ensure that the purchaser of the Notes is aware that such sale
is being made in reliance on Rule 144A; or
(B) in accordance with Regulation S under the
Securities Act, including but not limited to, the restrictions
set forth in Annex A hereto.
(c) Each Initial Purchaser acknowledges and agrees that the Company
and, for purposes of the opinions to be delivered to the Initial Purchasers
pursuant to Sections 5(f) and 5(g), counsel for the Company and for the Initial
Purchasers, respectively, may rely upon the accuracy of the representations and
warranties of the Initial Purchasers herein and their compliance with
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their agreements contained in paragraph (b) above (including Annex A hereto),
and each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may
offer and sell Notes to or through any affiliate of an Initial Purchaser and
that any such affiliate may offer and sell Notes purchased by it to or through
any Initial Purchaser.
2. Payment and Delivery. (a) Payment for and delivery of the Notes will
be made at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, 425 Lexington Avenue, New
York, New York, or at such other place as shall be agreed upon by the
Representative and the Company at 10:00 A.M., New York City time, on March 11,
2002, or at such other time on the same or such other date, not later than the
fifth Business Day thereafter, as the Representative and the Company may agree
upon in writing. The time and date of such payment and delivery is referred to
herein as the "Closing Date". As used herein, the term "Business Day" means any
day other than a day on which banks are permitted or required to be closed in
New York City.
(b) Payment for the Notes shall be made by wire transfer in immediately
available funds to the account specified by the Company to the Representative
against delivery to the nominee of The Depository Trust Company ("DTC"), for the
account of the Initial Purchasers, of global notes representing the Notes
(collectively, the "Global Notes"), with any transfer taxes payable in
connection with the sale of the Notes duly paid by the Company. The Global Notes
will be made available for inspection by the Representative at the offices of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ not later
than 1:00 P.M., New York City time, on the Business Day prior to the Closing
Date.
3. Representations and Warranties of the Company. The Company
represents and warrants to each Initial Purchaser that:
(a) Offering Memorandum. The Preliminary Offering Memorandum, as of its
date, did not, and the Offering Memorandum, in the form first used by the
Initial Purchasers to confirm sales of the Notes and on the Closing Date, will
not, contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the
Company makes no representation or warranty with respect to any statements or
omissions made in reliance upon and in conformity with information relating to
any Initial Purchaser furnished to the Company in writing by such Initial
Purchaser expressly for use in the Preliminary Offering Memorandum and the
Offering Memorandum.
(b) Incorporated Documents. The documents incorporated by reference in
the Offering Memorandum, when filed with the Commission conformed or will
conform, as the case may be, in all material respects to the requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and the rules
and regulations of the Commission thereunder, and did not and will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation with respect to
the filing of exhibits to documents incorporated by reference in the Offering
Memorandum.
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(c) Financial Statements. The consolidated financial statements and the
related notes thereto included and incorporated by reference in the Offering
Memorandum and, except as disclosed in the Offering Memorandum, the unaudited
additional financial information included in the Offering Memorandum, present
fairly in all material respects (subject, in the case of unaudited interim
financial statements, to normal year-end adjustments) the financial position of
the Company and its subsidiaries as of the dates indicated and the results of
their operations and the changes in their cash flows for the periods specified;
and the consolidated financial statements and the related notes thereto included
and incorporated by reference in the Offering Memorandum have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis.
(d) No Material Adverse Change. Since the date of the most recent
financial statements of the Company included or incorporated by reference in the
Offering Memorandum, (i) there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries (other than changes in
the ordinary course), or any dividend or distribution of any kind declared
(except as declared on February 12, 2002), paid or made by the Company on any
class of capital stock, or any material adverse change in or affecting the
business, management, financial position or results of operations of the Company
and its subsidiaries taken as a whole; (ii) neither the Company nor any of its
subsidiaries has entered into any transaction or agreement that is material to
the Company and its subsidiaries taken as a whole (whether or not in the
ordinary course of business) or incurred any liability or obligation, direct or
contingent, that is material to the Company and its subsidiaries taken as a
whole (other than in the ordinary course of business); and (iii) neither the
Company nor any of its subsidiaries has sustained any loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or any action, order or decree
of any court or arbitrator or governmental or regulatory authority, that is
material to the Company and its subsidiaries taken as a whole, except in each
case as otherwise disclosed in the Preliminary Offering Memorandum and Offering
Memorandum.
(e) Incorporation and Good Standing. The Company and each of its
significant subsidiaries have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective jurisdictions
of incorporation, are duly qualified to do business and are in good standing as
foreign corporations in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires such
qualification, and have all power and authority (corporate and other) necessary
to own or hold their respective properties and to conduct the businesses in
which they are engaged, except where the failure to be so qualified or have such
power or authority would not, individually or in the aggregate, have a material
adverse effect on the business, financial position or results of operations of
the Company and its subsidiaries taken as a whole or on the performance by the
Company of its obligations under the Notes (a "Material Adverse Effect"). The
following subsidiaries are the only "significant subsidiaries" (as defined in
Rule 1-02 of Regulation S-X under the Exchange Act) of the Company: Dana Canada
Inc.; Dana Credit Corporation; Echlin Inc.; and ▇▇▇▇▇▇ Technology, Inc.
(f) Capitalization. The Company had an authorized capitalization as of
December 31, 2001 as set forth in the Offering Memorandum under the heading
"Capitalization"; and all the outstanding shares of capital stock of each
significant subsidiary of the Company have been duly
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and validly authorized and issued, are fully paid and non-assessable (except, in
the case of any foreign subsidiary, for directors' qualifying shares) and are
owned directly or indirectly by the Company, free and clear of any lien, charge,
encumbrance, security interest, restriction on voting or transfer or any other
claim of any third party.
(g) Due Authorization. The Company has full right, power and authority
to execute and deliver this Agreement, the Notes, the Indenture, the Exchange
Notes and the Registration Rights Agreement (collectively, the "Transaction
Documents") and to perform its obligations hereunder and thereunder; and all
action (corporate and other) required to be taken for the due and proper
authorization, execution and delivery of each of the Transaction Documents and
the consummation of the transactions contemplated thereby has been duly and
validly taken.
(h) Transaction Documents. This Agreement has been duly authorized,
executed and delivered by the Company; the Notes have been duly authorized by
the Company and, when duly executed, authenticated, issued and delivered as
provided in the Indenture and paid for as provided herein, will be duly and
validly issued and outstanding and will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms, except as
enforceability may be limited by applicable bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability, and will be entitled to the benefits of
the Indenture; the Indenture has been duly authorized by the Company and, when
duly executed and delivered in accordance with its terms by each of the parties
thereto, will constitute a valid and legally binding agreement of the Company
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles relating
to enforceability, and on the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of the
Commission applicable to an indenture that is qualified thereunder; the Exchange
Notes have been duly authorized by the Company and, when duly executed,
authenticated, issued and delivered as contemplated by the Registration Rights
Agreement and the Indenture, will be duly and validly issued and outstanding and
will constitute valid and legally binding obligations of the Company enforceable
in accordance with their terms, except as enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability, and will be entitled to the benefits of the Indenture; the
Registration Rights Agreement has been duly authorized, executed and delivered
by the Company and, assuming that the Registration Rights Agreement has been
duly executed and delivered by the other parties thereto, constitutes a valid
and legally binding obligation of the Company enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability; and each
Transaction Document conforms in all material respects to the description
thereof contained in the Offering Memorandum.
(i) No Violation or Default. Neither the Company nor any of its
significant subsidiaries is in violation of its charter or by-laws; neither the
Company nor any of its subsidiaries is (i) in default in any material respect,
and no event has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term,
covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement or
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other agreement or instrument to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries is
subject; or (ii) in violation in any material respect of any law or statute or
any judgment, order or regulation of any court or arbitrator or governmental or
regulatory authority to which it or its property or assets may be subject,
except, in either case, for any such default or violation that would not,
individually or in the aggregate, have a Material Adverse Effect.
(j) No Conflicts With Existing Instruments; No Consents Required. The
execution, delivery and performance by the Company of each of the Transaction
Documents to which it is a party, the issuance and sale of the Notes and
compliance by the Company with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents (i) will not conflict
with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its subsidiaries is
subject, nor (ii) will any such action result in any violation of the provisions
of the charter or by-laws of the Company or any of its significant subsidiaries
nor (iii) will any such action result in any violation of any law or statute or
any judgment, order or regulation of any court or arbitrator or governmental or
regulatory authority having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets except, in the case
of clauses (i) and (iii), for any such conflict, breach or violation that would
not, individually or in the aggregate, have a Material Adverse Effect; and no
consent, approval, authorization, order, registration or qualification of or
with any such court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company of each of
the Transaction Documents, the issuance and sale of the Notes and compliance by
the Company with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents, except for such consents, approvals,
authorizations, orders and registrations or qualifications as may be required
(i) under applicable state securities laws in connection with the purchase and
resale of the Notes by the Initial Purchasers and (ii) with respect to the
Exchange Notes under the Securities Act and applicable state securities laws as
contemplated by the Registration Rights Agreement.
(k) Legal Proceedings. Except as described in the Offering Memorandum,
there are no legal, governmental or regulatory investigations, actions, suits or
proceedings pending to which the Company or any of its subsidiaries is or may be
a party or to which any property of the Company or any of its subsidiaries is or
may be the subject that, individually or in the aggregate, if determined
adversely to the Company or any of its subsidiaries, could reasonably be
expected to have a Material Adverse Effect; and to the best knowledge of the
Company, no such investigations, actions, suits or proceedings are threatened by
any governmental or regulatory authority or threatened by others.
(l) Independent Accountants. PricewaterhouseCoopers LLP, who have
certified certain financial statements of the Company and its subsidiaries, are
independent public accountants with respect to the Company and its subsidiaries
within the meaning of Rule 101 of the Code of
6
Professional Conduct of the American Institute of Certified Public Accountants
and its interpretations and rulings thereunder.
(m) Investment Company Act. The Company is not, and after giving effect
to the offering and sale of the Notes and the application of the proceeds
thereof as described in the Offering Memorandum will not be, an "investment
company" or an entity "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, and the rules and regulations
of the Commission thereunder (collectively, "Investment Company Act").
(n) Licenses and Permits. The Company and its subsidiaries possess all
licenses, certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal, state, local or
foreign governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of their
respective businesses as described in the Offering Memorandum, except where the
failure to possess or make the same would not, individually or in the aggregate,
have a Material Adverse Effect; and except as described in the Offering
Memorandum, neither the Company nor any of its subsidiaries has received notice
of any revocation or modification of any such license, certificate, permit or
authorization or has any reason to believe that any such license, certificate,
permit or authorization will not be renewed in the ordinary course.
(o) Compliance With Environmental Laws. The Company and its
subsidiaries (i) are in compliance with any and all applicable federal, state,
local and foreign laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (collectively, "Environmental Laws"), and none of
them has received notice of any outstanding violations of any Environmental
Laws; (ii) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective businesses;
and (iii) are in compliance with all terms and conditions of any such permit,
license or approval, except in any such case for any such failure to comply, or
to receive required permits, licenses or approvals, as would not, individually
or in the aggregate, have a Material Adverse Effect.
(p) Rule 144A Eligibility. The Notes satisfy the eligibility
requirements of Rule 144A(d)(3) under the Securities Act, and the Offering
Memorandum, as of its date, contains or will contain all the information that,
if requested by a prospective purchaser of the Notes, would be required to be
provided to such prospective purchaser pursuant to Rule 144A(d)(4) under the
Securities Act.
(q) No Integration. Neither the Company nor any of its affiliates (as
defined in Rule 501(b) of Regulation D) has, directly or through any agent,
sold, offered for sale, solicited offers to buy or otherwise negotiated in
respect of, any security (as defined in the Securities Act), that is or will be
integrated with the sale of the Notes in a manner that would require
registration of the Notes under the Securities Act.
(r) No General Solicitation or Directed Selling Efforts. None of the
Company or any of its affiliates or any other person acting on its or their
behalf (other than the Initial Purchasers as to whom no representation is made)
has (i) solicited offers for, or offered or sold, the Notes by means of any form
of general solicitation or general advertising within the meaning of Rule
7
502(c) of Regulation D or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act or (ii) engaged in any directed
selling efforts within the meaning of Regulation S under the Securities Act
("Regulation S"), and all such persons have complied with the offering
restrictions imposed by Regulation S.
(s) Securities Law Exemptions. Assuming the accuracy of the
representations and warranties of the Initial Purchasers contained in Section
1(b) (including Annex A hereto) and their compliance with their agreements set
forth therein, it is not necessary, in connection with the issuance and sale of
the Notes to the Initial Purchasers and the offer, resale and delivery of the
Notes by the Initial Purchasers in the manner contemplated by this Agreement and
the Offering Memorandum, to register the Notes under the Securities Act or to
qualify the Indenture under the Trust Indenture Act.
(t) No Stabilization. The Company has not taken, directly or
indirectly, any action designed to or that could reasonably be expected to cause
or result in any stabilization or manipulation of the price of the Notes.
4. Further Agreements of the Company. The Company covenants and agrees
with each Initial Purchaser that:
(a) Delivery of Copies. The Company will deliver to the Initial
Purchasers as many copies of the Preliminary Offering Memorandum and the
Offering Memorandum (including all amendments and supplements thereto) as the
Representative may reasonably request.
(b) Amendments or Supplements. Before distributing any amendment or
supplement to the Preliminary Offering Memorandum or the Offering Memorandum,
the Company will furnish to the Representative and counsel for the Initial
Purchasers a copy of the proposed amendment or supplement for review and will
not distribute any such proposed amendment or supplement to which the
Representative reasonably objects, unless in the opinion of counsel for the
Company such amendment or supplement is legally required.
(c) Notice to the Representative. The Company will advise the
Representative promptly, and confirm such advice in writing, (i) of the issuance
by any governmental or regulatory authority of any order preventing or
suspending the use of the Preliminary Offering Memorandum or the Offering
Memorandum or the initiation or threatening of any proceeding for that purpose
of which the Company is aware; (ii) of the occurrence of any event at any time
prior to the completion of the initial offering of the Notes (as advised by the
Representative) as a result of which the Offering Memorandum as then amended or
supplemented would include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing when the Offering Memorandum is delivered to
a purchaser, not misleading; and (iii) of the receipt by the Company of any
notice with respect to any suspension of the qualification of the Notes for
offer and sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and the Company will use its reasonable best
efforts to prevent the issuance of any such order preventing or suspending the
use of the Preliminary Offering Memorandum or the Offering Memorandum or
suspending any such qualification of the Notes and, if issued, will obtain as
soon as possible the withdrawal thereof.
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(d) Ongoing Compliance of the Offering Memorandum. If at any time prior
to the completion of the initial offering of the Notes (as advised by the
Representative), (i) any event shall occur or condition shall exist as a result
of which it is necessary to amend or supplement the Offering Memorandum in order
to make the statements therein, in the light of the circumstances when the
Offering Memorandum is delivered to a purchaser, not misleading or (ii) it is
necessary to amend or supplement the Offering Memorandum to comply with law, the
Company will immediately notify the Initial Purchasers thereof and forthwith
prepare and, subject to paragraph (b) above, furnish to the Initial Purchasers
such amendments or supplements to the Offering Memorandum as may be necessary so
that the statements in the Offering Memorandum as so amended or supplemented
will not, in the light of the circumstances existing when the Offering
Memorandum is delivered to a purchaser, be misleading or so that the Offering
Memorandum will comply with law.
(e) Blue Sky Compliance. The Company will cooperate with the Initial
Purchasers to qualify the Notes for offer and sale under the securities or Blue
Sky laws of such jurisdictions as the Representative shall reasonably request
and will continue such qualifications in effect so long as may be reasonably
required for the offering and resale of the Notes; provided that the Company
shall not be required to file a general consent to service of process in any
jurisdiction or to qualify as a foreign corporation or securities dealer or
subject itself to taxation in respect of, or be deemed to be doing business in,
any such jurisdictions.
(f) Clear Market. During the period from the date hereof through and
including the date that is 90 days after the Closing Date, the Company will not,
without the prior written consent of the Representative which consent shall not
be unreasonably withheld, offer, sell, contract to sell or otherwise dispose of
any debt securities issued or guaranteed by the Company and having a term of
more than one year.
(g) Use of Proceeds. The Company will apply the net proceeds from the
sale of the Notes as described in the Offering Memorandum.
(h) Supplying Information. For so long as the Notes remain outstanding
and are "restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Company will furnish to holders of the Notes and prospective
purchasers of the Notes designated by such holders, upon the request of such
holders or such prospective purchasers, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act, unless the Company is then
subject to and in compliance with Section 13 or 15(d) of the Exchange Act.
(i) PORTAL and DTC. The Company will assist the Representative in
arranging for the Notes to be designated Private Offerings, Resales and Trading
through Automated Linkages ("PORTAL") Market securities in accordance with the
rules and regulations adopted by the National Association of Securities Dealers,
Inc. ("NASD") relating to trading in the PORTAL Market and for the Notes to be
eligible for clearance and settlement through DTC.
(j) No Resales by the Company. Until the issuance of the Exchange
Notes, the Company will not, and will not permit any of its affiliates (as
defined in Rule 144 under the Securities Act) to, resell any of the Notes that
have been acquired by any of them, except for Notes purchased by
9
the Company or any of its affiliates and resold in a transaction registered
under the Securities Act.
(k) No Integration. Neither the Company nor any of its affiliates will,
directly or through any agent, sell, offer for sale, solicit offers to buy or
otherwise negotiate in respect of, any security (as defined in the Securities
Act), that is or will be integrated with the sale of the Notes in a manner that
would require registration of the Notes under the Securities Act.
(l) No General Solicitation or Directed Selling Efforts. None of the
Company or any of its affiliates or any other person acting on its or their
behalf (other than the Initial Purchasers as to whom no representation is made)
will (i) solicit offers for, or offer or sell, the Notes by means of any form of
general solicitation or general advertising within the meaning of Rule 502(c) of
Regulation D or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act or (ii) engage in any directed selling
efforts within the meaning of Regulation S, and all such persons will comply
with the offering restrictions imposed by Regulation S.
(m) No Stabilization. The Company will not take, directly or
indirectly, any action designed to or that could reasonably be expected to cause
or result in any stabilization or manipulation of the price of the Notes.
5. Conditions of Initial Purchasers' Obligations. The obligation of
each Initial Purchaser to purchase Notes on the Closing Date as provided herein
is subject to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) Representations and Warranties. The representations and warranties
of the Company contained in Section 3(a), (b), (d), (e), (i), (j), (k), (n) and
(o) herein shall be true and correct on the date hereof and on and as of the
Closing Date; the representations and warranties of the Company contained in
Section 3(c), (f), (g), (h), (l), (m), (p), (q), (r), (s) and (t) herein shall
be true and correct in all material respects on the date hereof and on and as of
the Closing Date; the statements of the Company and its officers made in any
certificates delivered pursuant to this Agreement shall be true and correct on
and as of the Closing Date; and the Company shall have complied in all material
respects with all agreements and all conditions to be performed or satisfied on
its part hereunder at or prior to the Closing Date.
(b) No Downgrading. Subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the rating accorded the
Notes or any other debt securities or preferred stock issued or guaranteed by
the Company by any "nationally recognized statistical rating organization", as
such term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act; and (ii) no such organization shall have publicly announced that
it has under surveillance or review (other than an announcement with positive
implications of a possible upgrading) its rating of the Notes or of any other
debt securities or preferred stock issued or guaranteed by the Company.
(c) No Material Adverse Change. Subsequent to the execution and
delivery of this Agreement, no event or condition of a type described in Section
3(d) hereof shall have occurred or shall exist, which event or condition is not
described in or contemplated by the Offering
10
Memorandum and the effect of which in the reasonable judgment of the
Representative makes it impracticable or inadvisable to proceed with the
offering, resale and delivery of the Notes on the Closing Date on the terms and
in the manner contemplated by this Agreement and the Offering Memorandum.
(d) Officer's Certificate. The Representative shall have received on
and as of the Closing Date a certificate of an authorized officer of the Company
who has specific knowledge of the Company's financial matters and is reasonably
satisfactory to the Representative to the effect set forth in paragraphs (a)
through (c) above.
(e) Comfort Letters. On the date of this Agreement and on the Closing
Date, PricewaterhouseCoopers LLP shall have furnished to the Representative, at
the request of the Company, letters, dated the respective dates of delivery
thereof and addressed to the Initial Purchasers, in form and substance
reasonably satisfactory to the Representative, containing statements and
information of the type customarily included in accountants' "comfort letters"
to underwriters with respect to the financial statements and certain financial
information contained in the Offering Memorandum.
(f) Opinion of Counsel for the Company. Rosenman & Colin LLP, Hunton &
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., counsel for the Company, shall have
furnished to the Representative, at the request of the Company, their written
opinion, dated the Closing Date and addressed to the Representative, in form and
substance reasonably satisfactory to the Representative, substantially to the
effect set forth in Annexes ▇-▇, ▇-▇ and B-3 hereto, respectively;
(g) Opinion of Counsel for the Initial Purchasers. The Representative
shall have received on and as of the Closing Date an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇, counsel for the Initial Purchasers, with respect to such matters as
the Representative may reasonably request, and such counsel shall have received
such documents and information as they may reasonably request to enable them to
pass upon such matters.
(h) No Legal Impediment to Issuance. No action shall have been taken
and no statute, rule, regulation or order shall have been enacted, adopted or
issued by any governmental or regulatory authority that would, as of the Closing
Date, prevent the issuance or sale of the Notes; and no injunction or order of
any federal, state or foreign court shall have been issued that would, as of the
Closing Date, prevent the issuance or sale of the Notes.
(i) Good Standing. The Initial Purchasers shall have received on and as
of the Closing Date satisfactory evidence of the good standing of the Company in
its jurisdiction of incorporation and its good standing as a foreign corporation
in such other jurisdictions as the Representative may reasonably request, in
each case in writing or any standard form of telecommunication, from the
appropriate governmental authorities of such jurisdictions.
(j) Registration Rights Agreement. The Initial Purchasers shall have
received a counterpart of the Registration Rights Agreement that shall have been
executed and delivered by a duly authorized officer of the Company.
(k) PORTAL and DTC. The Notes shall have been approved by the NASD for
trading in the PORTAL Market and shall be eligible for clearance and settlement
through DTC.
11
(l) Additional Documents. On or prior to the Closing Date, the Company
shall have furnished to the Representative such further certificates and
documents as the Representative may reasonably request.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchasers.
6. Indemnification and Contribution.
(a) Indemnification of the Initial Purchasers. The Company agrees to
indemnify and hold harmless each Initial Purchaser, its affiliates and each
person, if any, who controls such Initial Purchaser within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including, without
limitation, legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted), joint or several, caused by any
untrue statement or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum or the Offering Memorandum (or any amendment or
supplement thereto), or caused by any omission or alleged omission to state
therein a material fact or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to any Initial
Purchaser furnished to the Company in writing by such Initial Purchaser through
the Representative expressly for use therein provided, that with respect to any
such untrue statement in or omission from the Preliminary Offering Memorandum,
the indemnity agreement contained in this paragraph (a) shall not inure to the
benefit of any Initial Purchaser to the extent that the sale to the person
asserting any such loss, claim, damage or liability was an initial resale by
such Initial Purchaser and any such loss, claim, damage or liability of or with
respect to such Initial Purchaser results from the fact that both (i) a copy of
the Offering Memorandum was not sent or given to such person at or prior to the
written confirmation of the sale of such Notes to such person and (ii) the
untrue statement in or omission from such Preliminary Offering Memorandum was
corrected in the Offering Memorandum unless, in either case, such failure to
deliver the Offering Memorandum was a result of non-compliance by the Company
with the provisions of Section 4 hereof..
(b) Indemnification of the Company. Each Initial Purchaser agrees,
severally and not jointly, to indemnify and hold harmless the Company and each
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any losses,
claims, damages or liabilities caused by any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with any information relating to such Initial Purchaser furnished to the Company
in writing by such Initial Purchaser through the Representative expressly for
use in the Preliminary Offering Memorandum and the Offering Memorandum (or any
amendment or supplement thereto).
(c) Notice and Procedures. If any suit, action, proceeding (including
any governmental or regulatory investigation), claim or demand shall be brought
or asserted against any person in
12
respect of which indemnification may be sought pursuant to either paragraph (a)
or (b) above, such person (the "Indemnified Person") shall promptly notify the
person against whom such indemnification may be sought (the "Indemnifying
Person") in writing; provided that the failure to notify the Indemnifying Person
shall not relieve it from any liability that it may have under this Section 6
except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided,
further, that the failure to notify the Indemnifying Person shall not relieve it
from any liability that it may have to an Indemnified Person otherwise than
under this Section 6. If any such proceeding shall be brought or asserted
against an Indemnified Person and it shall have notified the Indemnifying Person
thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to
the Indemnified Person to represent the Indemnified Person and any others
entitled to indemnification pursuant to this Section 6 that the Indemnifying
Person may designate in such proceeding and shall pay the fees and expenses of
such counsel related to such proceeding. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Person unless (i)
the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for any Initial Purchaser, its affiliates and any control persons
of such Initial Purchaser shall be designated in writing by the Representative
and any such separate firm for the Company, and any control persons of the
Company shall be designated in writing by the Company. The Indemnifying Person
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested that an Indemnifying Person reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (i) includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject matter of
such proceeding and (ii) does not include any statement as to or any admission
of fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
13
(d) Contribution. If the indemnification provided for in paragraphs (a)
and (b) above is unavailable to an Indemnified Person or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Initial Purchasers on
the other from the offering of the Notes or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
but also the relative fault of the Company on the one hand and the Initial
Purchasers on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Initial Purchasers on the other shall be deemed to be in
the same respective proportions as the net proceeds (before deducting expenses)
received by the Company from the sale of the Notes and the total discounts and
commissions received by the Initial Purchasers in connection therewith, as
provided in this Agreement, bear to the aggregate offering price of the Notes.
The relative fault of the Company on the one hand and the Initial Purchasers 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 the Company
or by the Initial Purchasers and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
(e) Limitation on Liability. The Company and the Initial Purchasers
agree that it would not be just and equitable if contribution pursuant to this
Section 6 were determined by pro rata allocation (even if the Initial Purchasers
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred
to in paragraph (d) above. The amount paid or payable by an Indemnified Person
as a result of the losses, claims, damages and liabilities referred to in
paragraph (d) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, in no event shall an Initial
Purchaser be required to contribute any amount in excess of the amount by which
the total discounts and commissions received by such Initial Purchaser with
respect to the offering of the Notes exceeds the amount of any damages that such
Initial Purchaser 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 Initial Purchasers' obligations
to contribute pursuant to this Section 6 are several in proportion to their
respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 6
are not exclusive and shall not limit any rights or remedies that may otherwise
be available to any Indemnified Person at law or in equity.
7. Termination. This Agreement may be terminated in the absolute
discretion of the Representative, by notice to the Company, if after the
execution and delivery of this Agreement
14
and prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by any of the New York Stock Exchange or the
over-the-counter market; (ii) trading of any securities issued or guaranteed by
the Company shall have been suspended on any exchange or in any over-the-counter
market; (iii) a general moratorium on commercial banking activities shall have
been declared by federal or New York State authorities; or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis, either within or outside the United States,
that in the judgment of the Representative is material and adverse and makes it
impracticable or inadvisable to market the Notes on the terms and in the manner
contemplated by this Agreement and the Offering Memorandum.
8. Defaulting Initial Purchaser.
(a) If, on the Closing Date, any Initial Purchaser defaults on its
obligation to purchase the Notes that it has agreed to purchase hereunder, the
non-defaulting Initial Purchasers may in their discretion arrange for the
purchase of such Notes by other persons satisfactory to the Company on the terms
contained in this Agreement. If, within 36 hours after any such default by any
Initial Purchaser, the non-defaulting Initial Purchasers do not arrange for the
purchase of such Notes, then the Company shall be entitled to a further period
of 36 hours within which to procure other persons satisfactory to the
non-defaulting Initial Purchasers to purchase such Notes on such terms. If other
persons become obligated or agree to purchase the Notes of a defaulting Initial
Purchaser, either the non-defaulting Initial Purchasers or the Company may
postpone the Closing Date for up to five full Business Days in order to effect
any changes that in the opinion of counsel for the Company or counsel for the
Initial Purchasers may be necessary in the Offering Memorandum or in any other
document or arrangement, and the Company agrees to promptly prepare any
amendment or supplement to the Offering Memorandum that effects any such
changes. As used in this Agreement, the term "Initial Purchaser" includes, for
all purposes of this Agreement unless the context otherwise requires, any person
not listed in Schedule 1 hereto that, pursuant to this Section 8, purchases
Notes that a defaulting Initial Purchaser agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the
Notes of a defaulting Initial Purchaser or Initial Purchasers by the
non-defaulting Initial Purchasers and the Company as provided in paragraph (a)
above, the aggregate principal amount of such Notes that remains unpurchased
does not exceed one-eleventh of the aggregate principal amount of all the Notes,
then the Company shall have the right to require each non-defaulting Initial
Purchaser to purchase the principal amount of Notes that such Initial Purchaser
agreed to purchase hereunder plus such Initial Purchaser's pro rata share (based
on the principal amount of Notes that such Initial Purchaser agreed to purchase
hereunder) of the Notes of such defaulting Initial Purchaser or Initial
Purchasers for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the
Notes of a defaulting Initial Purchaser or Initial Purchasers by the
non-defaulting Initial Purchasers and the Company as provided in paragraph (a)
above, the aggregate principal amount of such Notes that remains unpurchased
exceeds one-eleventh of the aggregate principal amount of all the Notes, or if
the Company shall not exercise the right described in paragraph (b) above, then
this Agreement shall terminate without liability on the part of the
non-defaulting Initial Purchasers or
15
the Company, except that the Company will continue to be liable for the payment
of expenses as set forth in Section 9 hereof and except that the provisions of
Section 6 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Company or any non-defaulting
Initial Purchaser for damages caused by its default.
9. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, the Company agrees to pay or cause
to be paid all costs and expenses incident to the performance of its obligations
hereunder, including without limitation, (i) the costs incident to the
authorization, issuance, sale, preparation and delivery of the Notes and any
taxes payable in that connection; (ii) the costs incident to the preparation and
printing of the Preliminary Offering Memorandum and the Offering Memorandum
(including any amendment or supplement thereto) and the distribution thereof to
the Initial Purchasers; (iii) the costs of reproducing and distributing each of
the Transaction Documents; (iv) the fees and expenses of the Company's counsel
and independent accountants; (v) the fees and expenses incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Notes under the laws of such jurisdictions as the
Representative may designate and the preparation, printing and distribution of a
Blue Sky Memorandum (including the related fees and expenses of counsel for the
Initial Purchasers); (vi) any fees charged by rating agencies for rating the
Notes; (vii) the fees and expenses of the Trustee and any paying agent
(including related fees and expenses of any counsel to such parties); (viii) all
expenses and application fees incurred in connection with the application for
the inclusion of the Notes on the PORTAL Market and the approval of the Notes
for book-entry transfer by DTC; and (ix) all expenses incurred by the Company in
connection with any "road show" presentation to potential investors.
(b) If (i) this Agreement is terminated pursuant to Section 7, (ii) the
Company for any reason fails to tender the Notes for delivery to the Initial
Purchasers or (iii) the Initial Purchasers decline to purchase the Notes for any
reason permitted under this Agreement, the Company agrees to reimburse the
Initial Purchasers for all out-of-pocket costs and expenses (including the fees
and expenses of their counsel) reasonably incurred by the Initial Purchasers in
connection with this Agreement and the offering contemplated hereby.
10. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Company and any controlling
persons referred to herein, the Initial Purchasers, their respective affiliates
and any controlling persons referred to herein, and their respective successors.
Nothing in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein. No purchaser of Notes from any
Initial Purchaser shall be deemed to be a successor merely by reason of such
purchase.
11. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Initial
Purchasers contained in this Agreement or made by or on behalf of the Company or
the Initial Purchasers pursuant to this
16
Agreement or any certificate delivered pursuant hereto shall survive the
delivery of and payment for the Notes and shall remain in full force and effect,
regardless of any termination of this Agreement or any investigation made by or
on behalf of the Company or the Initial Purchasers.
12. Initial Purchasers' Information. The Company and the Initial
Purchasers acknowledge and agree that the only information relating to any
Initial Purchaser that has been furnished to the Company in writing by any
Initial Purchaser through the Representative expressly for use in the
Preliminary Offering Memorandum and the Offering Memorandum (or any amendment or
supplement thereto) consists of the following: the statements concerning the
Initial Purchasers contained in the third paragraph, the fifth and sixth
sentences of paragraph eight and the ninth paragraph under the heading "Plan of
Distribution" in the Preliminary Offering Memorandum and the Offering
Memorandum.
13. Definition of Terms. For purposes of this Agreement, (a) the term
"subsidiary" has the meaning set forth in Rule 405 under the Securities Act, (b)
the term "significant subsidiary" has the meaning set forth in Rule 1-02 of
Regulation S-X under the Exchange Act and (c) except where otherwise expressly
provided, the term "affiliate" has the meaning set forth in Rule 405 under the
Securities Act.
14. Miscellaneous.
(a) Authority of the Representative. Any action by the Initial
Purchasers hereunder may be taken by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. on behalf of the
Initial Purchasers, and any such action taken by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. shall
be binding upon the Initial Purchasers.
(b) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted and
confirmed by any standard form of telecommunication. Notices to the Initial
Purchasers shall be given to the Representative at: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax: ▇▇▇-▇▇▇-▇▇▇▇); Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. Notices to the Company shall be given to it at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (fax: ▇▇▇-▇▇▇-▇▇▇▇); Attention: Treasurer.
(C) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(d) Counterparts. This Agreement may be signed in counterparts (which
may include counterparts delivered by any standard form of telecommunication),
each of which shall be an original and all of which together shall constitute
one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto.
(f) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
17
If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space provided
below.
Very truly yours,
▇▇▇▇ CORPORATION
By /s/ A. ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Title: Vice President - Treasurer
Confirmed and accepted as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
For itself and on behalf of the
other several Initial Purchasers listed
in Schedule 1 hereto.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Title: Co-Head, Managing Director
Schedule 1
Principal Amount
Initial Purchaser of Notes
----------------- --------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. $125,000,000
Banc of America Securities LLC 50,000,000
Credit Suisse First Boston Corporation 12,500,000
Deutsche Banc Alex. ▇▇▇▇▇ Inc. 12,500,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. 12,500,000
Banc One Capital Markets, Inc. 3,750,000
BNP Paribas Securities Corp. 3,750,000
BNY Capital Markets, Inc. 3,750,000
Comerica Securities, Inc. 3,750,000
HSBC Securities (USA) Inc. 3,750,000
McDonald Investments, Inc. 3,750,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 3,750,000
SunTrust Capital Markets, Inc. 3,750,000
TD Securities (USA) Inc. 3,750,000
UBS Warburg LLC 3,750,000
Total $250,000,000
============
ANNEX A
Restrictions on Offers and Sales Outside the United States
In connection with offers and sales of Notes outside the United States:
(a) Each Initial Purchaser acknowledges that the Notes have not been
registered under the Securities Act and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons except
pursuant to an exemption from, or in transactions not subject to, the
registration requirements of the Securities Act.
(b) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) Such Initial Purchaser has offered and sold the Notes, and
will offer and sell the Notes, (A) as part of their distribution at any
time and (B) otherwise until 40 days after the later of the
commencement of the offering of the Notes and the Closing Date, only in
accordance with Regulation S under the Securities Act ("Regulation S")
or Rule 144A or any other available exemption from registration under
the Securities Act.
(ii) None of such Initial Purchaser or any of its affiliates
or any other person acting on its or their behalf has engaged or will
engage in any directed selling efforts with respect to the Notes, and
all such persons have complied and will comply with the offering
restrictions requirement of Regulation S.
(iii) At or prior to the confirmation of sale of any Notes
sold in reliance on Regulation S, such Initial Purchaser will have sent
to each distributor, dealer or other person receiving a selling
concession, fee or other remuneration that purchases Notes from it
during the distribution compliance period a confirmation or notice to
substantially the following effect:
"The Notes covered hereby have not been registered under the
U.S. Securities Act of 1933, as amended (the "Securities
Act"), and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons (i) as
part of their distribution at any time or (ii) otherwise until
40 days after the later of the commencement of the offering of
the Notes and the date of original issuance of the Notes,
except in either case in accordance with Regulation S or Rule
144A or any other available exemption from registration under
the Securities Act. Terms used above have the meanings given
to them by Regulation S."
(iv) Such Initial Purchaser has not and will not enter into
any contractual arrangement with any distributor with respect to the
distribution of the Notes, except with its affiliates or with the prior
written consent of the Company.
Terms used in paragraph (a) and this paragraph (b) have the
meanings given to them by Regulation S.
(c) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that (i) it has not offered or sold and, prior to the expiry
of the period of six months after the Closing Date, will not offer or sell any
Notes to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (ii) it has only communicated or caused
to be communicated and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the meaning of
section 21 of the Financial Services and Markets Act 2000 (the "FSMA")) with
received by it in connection with the issue or sale of any Notes in
circumstances in which section 21(1) of the FSMA does not apply to ▇▇▇▇; and
(iii) it has complied and will comply with all applicable provisions of the FSMA
respect to anything done by it in relation to the Notes in, from or otherwise
involving the United Kingdom.
(d) Each Initial Purchaser acknowledges that no action has been or will be
taken by the Company that would permit a public offering of the Notes, or
possession or distribution of the Preliminary Offering Memorandum, the Offering
Memorandum or any other offering or publicity material relating to the Notes, in
any country or jurisdiction where action for that purpose is required.
2
Annex B-1
[Form of Opinion of Rosenman & Colin LLP, Counsel for the Company]
(a) The Indenture conforms in all material respects with the requirements
of the Trust Indenture Act and the rules and regulations of the Commission
applicable to an indenture that is qualified thereunder;
(b) Assuming that the execution and delivery of the Purchase Agreement
have been duly authorized by the Company, the Purchase Agreement has been duly
executed and delivered by the Company; assuming that the execution and delivery
of the Registration Rights Agreement have been duly authorized by the Company,
the Registration Rights Agreement has been duly executed and delivered by the
Company and constitutes a valid and legally binding agreement of the Company
enforceable in accordance with its terms; assuming that the execution and
delivery of the Notes have been duly authorized by the Company, the Notes have
been duly executed and delivered by the Company and, when duly authenticated as
provided in the Indenture and paid for as provided in the Purchase Agreement,
will be duly and validly issued and outstanding and will constitute valid and
legally binding obligations of the Company, as issuer, enforceable in accordance
with their terms and entitled to the benefits of the Indenture; assuming that
the execution and delivery of the Indenture have been duly authorized by the
Company, the Indenture has been duly executed and delivered by the Company and,
assuming due execution and delivery thereof by the Trustee, constitutes a valid
and legally binding agreement of the Company enforceable in accordance with its
terms. Assuming that the execution and delivery of the Exchange Notes have been
duly authorized by the Company, the Exchange Notes, when duly executed,
authenticated, issued and delivered as contemplated by the Registration Rights
Agreement and the Indenture, will be duly and validly issued and outstanding and
will constitute valid and legally binding obligations of the Company, as issuer,
enforceable in accordance with their terms and entitled to the benefits of the
Indenture; and each Transaction Document conforms in all material respects to
the description thereof contained in the Offering Memorandum.
(c) To the knowledge of such counsel, the execution, delivery and
performance by the Company of each of the Transaction Documents, the issuance
and sale of the Notes and compliance by the Company with the terms thereof and
the consummation of the transactions contemplated by the Transaction Documents
will not result in a breach or violation of any of the terms or provisions of,
or constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, except for any such breach or violation
that would not, individually or in the aggregate, have a Material Adverse
Effect.
(d) The execution, delivery and performance by the Company of each of the
Transaction Documents, the issuance and sale of the Notes and compliance by the
Company with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents will not result (i) in any violation
of the provisions of the charter or by-laws of the
Company or any of its significant subsidiaries or (ii) in any violation of any
law, statute or regulation or, to the knowledge of such counsel, any judgment or
order of any court or arbitrator or governmental or regulatory authority having
jurisdiction over the Company or any of its significant subsidiaries or any of
their respective properties or assets except, in the case of clause (ii), for
any such breach or violation that would not, individually or in the aggregate,
have a Material Adverse Effect.
(e) No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory
authority is required for the execution, delivery and performance by the Company
of each of the Transaction Documents, the issuance and sale of the Notes and
compliance by the Company with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents, except for such
consents, approvals, authorizations, orders and registrations or qualifications
as may be required (i) under applicable state securities laws in connection with
the purchase and resale of the Notes by the Initial Purchasers and (ii) with
respect to the Exchange Notes under the Securities Act and applicable state
securities laws as contemplated by the Registration Rights Agreement.
(f) To the knowledge of such counsel, except as described in the Offering
Memorandum, there are no legal, governmental or regulatory investigations,
actions, suits or proceedings pending to which the Company or any of its
subsidiaries is or may be a party or to which any property of the Company or any
of its subsidiaries is or may be the subject that, individually or in the
aggregate, if determined adversely to the Company or any of its subsidiaries,
could reasonably be expected to have a Material Adverse Effect; and to the
knowledge of such counsel, no such investigations, actions, suits or proceedings
are threatened or contemplated by any governmental or regulatory authority or
threatened by others.
(g) The descriptions in the Offering Memorandum of statutes, legal,
governmental and regulatory proceedings and contracts and other documents are
accurate in all material respects; and the statements in the Offering Memorandum
under the heading "Federal Income Tax Considerations", to the extent that they
constitute summaries of matters of law or regulation or legal conclusions,
fairly summarize the matters described therein in all material respects.
(h) The documents incorporated by reference in the Offering Memorandum
(other than the financial statements and other financial information contained
therein and other than with respect to the filing of exhibits thereto, as to
which such counsel need express no opinion), when filed with the Commission,
complied as to form in all material respects to the requirements of the Exchange
Act and the rules and regulations of the Commission thereunder.
(i) The Company is not, and after giving effect to the offering and sale
of the Notes and the application of the proceeds thereof as described in the
Offering Memorandum, will not be, an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the Investment
Company Act.
(j) Assuming the accuracy of the representations and warranties and the
performance of the agreements of the Company and the Initial Purchasers
contained in the Purchase Agreement, it is not necessary, in connection with the
issuance and sale of the Notes to the Initial Purchasers and the offer, resale
and delivery of the Notes by the Initial Purchasers in the manner contemplated
by
2
the Purchase Agreement and the Offering Memorandum, to register the Notes under
the Securities Act or to qualify the Indenture under the Trust Indenture Act.
Such counsel shall also state that they have participated in conferences
with representatives of the Company and with representatives of its independent
public accountants and counsel at which conferences the contents of the
Preliminary Offering Memorandum and the Offering Memorandum and any amendment
and supplement thereto and related matters were discussed and, although such
counsel need not independently verify and will not pass upon and assumes no
responsibility for the accuracy, completeness or fairness of the Preliminary
Offering Memorandum and the Offering Memorandum and any amendment or supplement
thereto (except as expressly provided above), nothing has come to the attention
of such counsel to cause such counsel to believe that the Offering Memorandum or
any amendment or supplement thereto, as of its date and the Closing Date,
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements contained therein, in
light of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no belief with respect to the
financial statements and related notes thereto and the other financial data
included in the Offering Memorandum).
In rendering such opinion, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and public officials that
are furnished to the Initial Purchasers.
The opinion of counsel described above shall be rendered to the Initial
Purchasers at the request of the Company and shall so state therein.
3
Annex B-2
[Form of Opinion of Hunton & ▇▇▇▇▇▇▇▇, Counsel for the Company]
(a) The Company and ▇▇▇▇ Credit Corporation have been duly incorporated
and are validly existing as corporations in good standing under the laws of
their respective jurisdictions of incorporation and have all corporate power and
authority necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged, except where the failure to have such
power or authority would not, individually or in the aggregate, have a Material
Adverse Effect.
(b) The Company has full right, power and authority to execute and deliver
each of the Transaction Documents and to perform its obligations thereunder; and
all corporate action required to be taken for the due and proper authorization,
execution and delivery of each of the Transaction Documents and the consummation
of the transactions contemplated thereby have been duly and validly taken.
(c) The Purchase Agreement and the Registration Rights Agreement have been
duly authorized, executed and delivered by the Company and constitute valid and
legally binding obligations of the Company enforceable in accordance with their
terms; the Notes have been duly authorized, executed and delivered by the
Company and, when duly authenticated as provided in the Indenture and paid for
as provided in the Purchase Agreement, will be duly and validly issued and
outstanding and will constitute valid and legally binding obligations of the
Company, as issuer, enforceable in accordance with their terms and entitled to
the benefits of the Indenture; the Indenture has been duly authorized, executed
and delivered by the Company and, assuming due execution and delivery thereof by
the parties thereto, constitutes a valid and legally binding agreement of the
Company enforceable in accordance with its terms. The Exchange Notes have been
duly authorized by the Company and, when duly executed, authenticated, issued
and delivered as contemplated by the Registration Rights Agreement, will be duly
and validly issued and outstanding and will constitute valid and legally binding
obligations of the Company, as issuer, enforceable in accordance with their
terms and entitled to the benefits of the Indenture; and each Transaction
Document conforms in all material respects to the description thereof contained
in the Offering Memorandum.
In rendering such opinion, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and public officials that
are furnished to the Initial Purchasers.
The opinion of counsel described above shall be rendered to the Initial
Purchasers at the request of the Company and shall so state therein.
Annex B-3
[Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., Counsel for the Company]
(a) The Company had an authorized capitalization as of December 31, 2001
as set forth in the Offering Memorandum under the heading "Capitalization"; and
all the outstanding shares of capital stock of each significant subsidiary of
the Company have been duly and validly authorized and issued, are fully paid and
non-assessable.
(b) Neither the Company nor any of its significant subsidiaries is in
violation of its charter or by-laws; neither the Company nor any of its
subsidiaries is (i) in default in any material respect, and no event has
occurred that, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound or to
which any of its property or assets is subject; or (ii) in violation in any
material respect of any law or statute or any judgment, order or regulation of
any court or arbitrator or governmental or regulatory authority to which it or
its property or assets may be subject, except, in either case, for any such
default or violation that would not, individually or in the aggregate, have a
Material Adverse Effect.
In rendering such opinion, such counsel may rely as to matters of fact on
certificates of responsible officers of the Company and public officials that
are furnished to the Initial Purchasers.
The opinion of counsel described above shall be rendered to the Initial
Purchasers at the request of the Company and shall so state therein.