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Exhibit 1.01
TERMS AGREEMENT
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October 27, 1998
Xxxxxxx Xxxxx Xxxxxx Holdings Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Executive Vice President and Treasurer
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Dear Sirs:
We understand that Xxxxxxx Xxxxx Barney Holdings Inc., a Delaware
corporation (the "Company"), proposes to issue and sell 2,700,000 Units
($27,000,000 aggregate principal amount) of its Principal-Protected Equity
Linked Notes based upon the S&P 500(R) Index Due December 30, 2005 (the
"Securities"). Subject to the terms and conditions set forth herein or
incorporated by reference herein, we, as underwriter (the "Underwriter"), offer
to purchase 2,700,000 Units ($27,000,000 aggregate principal amount) of the
Securities at a purchase price equal to 96.5% of the aggregate principal amount
thereof. The Closing Date shall be October 30, 1998 at 9:00 a.m. at the offices
of Xxxxxxx Xxxxx Xxxxxx Holdings Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
The Securities shall have the following terms:
Title: Principal-Protected Equity Linked Notes based upon
the S&P 500(R) Index Due December 30, 2005.
Maturity: December 30, 2005.
Interest Rate: The Securities will bear no periodic payments of
interest. Holders of the Securities will be
entitled to receive the principal amount thereof
plus a payment, if any, equal to the Supplemental
Redemption Amount (as defined in the Prospectus
Supplement, dated October 27, 1998, relating to
the Securities).
Interest Payment Date: Not applicable.
Regular Record Dates: Not applicable.
Initial Price To Public: 100% of the principal amount thereof.
Redemption Provisions: The Securities are not redeemable by the Company
prior to maturity.
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Indenture: Senior Debt Indenture, dated as of October 27,
1993, between the Company and The Bank of New
York, as supplemented by the First Supplemental
Indenture, dated as of November 28, 1997.
Trustee: The Bank of New York.
All the provisions contained in the document entitled "Xxxxxxx Xxxxx
Barney Holdings Inc. - Debt Securities - Underwriting Agreement Basic
Provisions" and dated December 1, 1997 (the "Basic Provisions"), a copy of which
you have previously received, are, except as indicated below, herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Terms Agreement to the same extent as if the Basic Provisions had been set
forth in full herein. Terms defined in the Basic Provisions are used herein as
therein defined.
Basic Provisions varied with respect to this Terms Agreement:
(A) Notwithstanding the provisions set forth in Section 3 of the Basic
Provisions, the Company and the Underwriter hereby agree that the
Securities will be in the form of Book-Entry Notes and shall be delivered
on October 30, 1998 against payment of the purchase price to the Company
by wire transfer in immediately available funds to such accounts with such
financial institutions as the Company may direct;
(B) Section 4(j) of the Basic Provisions shall be amended and restated as
follows: "The Company will not, without the consent of Xxxxxxx Xxxxx
Xxxxxx Inc., offer or sell, or publicly announce its intention to offer
or sell, any debt securities denominated in the currency in which the
Securities are denominated having a maturity of more than one year
(except under prior contractual commitments or pursuant to bank credit
agreements) during the period beginning the date of the Terms Agreement
and ending the business day following the Closing Date;"
(C) A new Section 5(i) shall be added to the Basic Provisions and read as
follows: "Cleary, Gottlieb, Xxxxx & Xxxxxxxx, special tax counsel to the
Company, shall have furnished to you an opinion, dated the Closing Date,
as to certain tax matters relating to the Securities, in a form reasonably
acceptable to the Underwriter;" and
(D) Xxxx Xxxxxxxxxxxx, Deputy General Counsel of the Company, shall have
furnished to the Underwriter an opinion, dated the Closing Date, as to the
matters referenced in Sections 5(c) and 5(d) of the Basic Provisions.
The Underwriter hereby agrees in connection with the underwriting of
the Securities to comply with the requirements set forth in any applicable
sections of Section 2720 to the By-Laws of the National Association of
Securities Dealers, Inc.
Xxxx Xxxxxxxxxxxx, Esq. is counsel to the Company. Cleary,
Gottlieb, Xxxxx & Xxxxxxxx is special tax counsel to the Company and counsel
to the Underwriter.
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Please accept this offer no later than 9:00 p.m. on October 27,
1998, by signing a copy of this Terms Agreement in the space set forth below and
returning the signed copy to us, or by sending us a written acceptance in the
following form:
"We hereby accept your offer, set forth in the Terms Agreement,
dated October 27, 1998, to purchase the Securities on the Terms set forth
therein."
Very truly yours,
XXXXXXX XXXXX BARNEY INC.
By: /s/Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Vice President
ACCEPTED:
XXXXXXX XXXXX XXXXXX HOLDINGS INC.
By: /s/Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Executive Vice President and
Treasurer
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