Exhibit 4.19
EXECUTION COPY
SECURITIES PURCHASE AGREEMENT
Among
LEVI XXXXXXX & CO.
as Seller
and
THE PURCHASERS SET FORTH ON SCHEDULE I HERETO
as Purchasers
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January 15, 2002
TABLE OF CONTENTS
Page
1. Agreement To Sell and Purchase ....................................... 1
2. Closing, Delivery And Payment ........................................ 1
3. Representations and Warranties Of The Company ........................ 2
3.1 Organization, Good Standing And Qualification .................... 2
3.2 Authorization; Binding Obligations ............................... 2
3.3 Absence of Conflicts ............................................. 3
3.4 Valid Issuance of Securities ..................................... 3
3.5 Governmental Consents, Etc ....................................... 3
3.6 No Untrue Statements ............................................. 4
4. Representations And Warranties Of The Purchasers ..................... 4
4.1 Requisite Power And Authority .................................... 4
4.2 Consents ......................................................... 4
4.3 Investment Representations ....................................... 4
5. Conditions To Closing ................................................ 5
5.1 Conditions To The Purchasers' Obligations At The Closing ......... 5
5.2 Conditions To Obligations Of The Company ......................... 6
6. Rule 144 Reporting ................................................... 6
7. Covenants ............................................................ 7
7.1 Transfer Restrictions ............................................ 7
7.2 Registration Rights .............................................. 7
8. Miscellaneous ........................................................ 7
8.1 Governing Law .................................................... 7
8.2 Survival ......................................................... 7
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8.3 Successors And Assigns ................................. 7
8.4 Separability ........................................... 8
8.5 Amendment And Waiver ................................... 8
8.6 Notices ................................................ 8
8.7 Expenses ............................................... 8
8.8 Attorneys' Fees ........................................ 8
8.9 Headings ............................................... 9
8.10 Counterparts ........................................... 9
8.11 Broker's Fees .......................................... 9
8.12 Subsequent Consents, Permits and Waivers ............... 9
List of Schedules:
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Schedule I - Purchasers and Aggregate Principal Amount of Securities to be
Purchased
List of Exhibits:
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Exhibit A - Registration Rights Agreement
Exhibit B - Final Memorandum
Exhibit C - Form of Opinion
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LEVI XXXXXXX & CO.
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (the "Agreement") is entered into as
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of January 15, 2003, among Levi Xxxxxxx & Co., a Delaware corporation (the
"Company"), and the purchasers set forth on Schedule I hereto (each a
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"Purchaser," and collectively the "Purchasers").
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RECITALS
WHEREAS, the Company has previously entered into the Purchase
Agreement, dated as of November 26, 2002 (the "November Purchase Agreement"; any
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capitalized terms used but not otherwise defined herein shall have the meaning
ascribed to them in the November Purchase Agreement) among the Company and the
purchasers named in such agreement for the purchase of $425,000,000 principal
amount of 12 1/4% Senior Notes due 2012 (the "Securities"), with the Securities
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being issued under the Indenture, dated as of December 4, 2002 (the
"Indenture"), between the Company and Wilmington Trust Company, as trustee (the
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"Trustee"), and with the Securities having the benefit of a Registration Rights
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Agreement, dated as of November 26, 2002 (the "Registration Rights Agreement"),
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among the Company and the purchasers named in the November Purchase Agreement, a
copy of which is attached hereto as Exhibit A; and
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WHEREAS, the Purchasers desire to purchase $50,000,000 aggregate
principal amount of the Securities with such purchase to be made in a private
placement to close on January 22, 2003; and
WHEREAS, the Company desires to issue and sell the Securities to the
Purchasers on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises hereinafter set forth, the parties hereto agree as follows:
1. Agreement To Sell and Purchase.
Subject to the terms and conditions hereof, the Company hereby agrees
to issue and sell to the Purchasers, and the Purchasers agree, jointly and
severally, to purchase from the Company, at the Closing, the principal amount of
Securities set forth opposite each Purchaser's name on Schedule I hereto, which
totals $50,000,000 aggregate principal amount of Securities, at a purchase price
of 98.58% of the aggregate principal amount of the Securities purchased pursuant
to the terms hereof, plus accrued interest from December 4, 2002 to the Closing
Date (as defined below).
2. Closing, Delivery And Payment.
Subject to the terms of Section 5, the closing of the sale and purchase
of the Securities under this Agreement (the "Closing") shall take place on
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January 22, 2003, at the offices of Shearman & Sterling, 000 Xxxxxxxxxx Xxxxxx,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, or at such other time or location as may be
agreed by each of the parties hereto. The date of the Closing is
referred to as the "Closing Date." Delivery of the Securities shall be made to
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the Purchasers against payment by the Purchasers of the purchase price thereof
to or upon the order of the Company by wire transfer payable in same-day funds
to the account specified by the Company.
3. Representations and Warranties Of The Company.
The Company represents and warrants to the Purchasers that those
representations and warranties set forth in the November Purchase Agreement
attached hereto as Annex 1 shall be true and correct in all material respects as
of the date hereof (except to the extent expressly made as of an earlier date,
in which case, as of such earlier date). Except as set forth in the Schedule of
Exceptions attached hereto as Annex 2, the Company hereby additionally
represents and warrants to Purchasers as of the date hereof as follows:
3.1 Organization, Good Standing And Qualification.
Each of the Company and its subsidiaries has been duly incorporated or
organized and is validly existing as a corporation or other valid legal entity
in good standing under the laws of the jurisdiction in which it is chartered or
organized with full corporate or company power and authority to own or lease, as
the case may be, and to operate its properties and conduct its business as
described in the Offering Memorandum, dated as of November 26, 2002 (the "Final
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Memorandum"), a copy of which is attached hereto as Exhibit B, and is duly
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qualified to do business as a foreign corporation or other valid legal entity
and is in good standing under the laws of each jurisdiction which requires such
qualification, except in jurisdictions in which the failure to be so qualified
or to be in good standing has not had and would not reasonably be expected to
have a Material Adverse Effect. For purposes of this Agreement, a "Material
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Adverse Effect" shall mean a material adverse effect on, or a material adverse
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change in, the condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its subsidiaries, taken as a whole.
3.2 Authorization; Binding Obligations.
All corporate action on the part of the Company, its officers,
directors and shareholders necessary for the authorization, execution and
delivery of this Agreement, for the execution, authentication and delivery of
the Securities pursuant to the Indenture, for the sale of the Securities
pursuant hereto and for the performance of the Company's obligations hereunder
has been taken or will be taken prior to the Closing. This Agreement, when
executed and delivered, will be a valid and binding obligation of the Company
enforceable in accordance with its terms. The sale of the Securities is not and
will not be subject to any preemptive rights or rights of first refusal that
have not been properly waived or complied with. When issued in compliance with
the provisions of this Agreement and the Indenture, the Securities will be
legal, valid and binding obligations of the Company, and will be free of any
liens or encumbrances; provided, however, that the Securities may be subject to
restrictions on transfer under this Agreement and under state and/or federal
securities laws as set forth herein or as otherwise required by such laws at the
time a transfer is proposed.
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3.3 Absence of Conflicts.
Neither the execution and delivery of the Indenture, this Agreement or
the Registration Rights Agreement, the issue and sale of the Securities, nor the
consummation of any other of the transactions herein or therein contemplated,
nor the fulfillment of the terms hereof or thereof will conflict with, result in
a breach or violation of, or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its subsidiaries pursuant to,
(i) the charter or by-laws of the Company or any of its subsidiaries; (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition, covenant or
instrument to which the Company or any of its subsidiaries is a party or bound
or to which any of their respective properties is subject; or (iii) any statute,
law, rule, regulation, judgment, order or decree applicable to the Company or
any of its subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority of the United States or any
state thereof having jurisdiction over the Company, any of its subsidiaries or
any of their respective properties or to the Company's knowledge, any statute,
law, rule, regulation, judgment, order or decree applicable to the Company or
any of its subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority outside of the United States
having jurisdiction over the Company, any of its subsidiaries or any of their
respective properties, except, with respect to (x) clause (ii) and (y) any
statute, law, rule, regulation, judgment, order or decree applicable to the
Company or any of its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority outside of the United
States described in clause (iii) as to which the Company has no knowledge, for
conflicts, violations, breaches or impositions that would not reasonably be
expected to have a Material Adverse Effect.
3.4 Valid Issuance of Securities.
This Agreement and the Indenture have been duly authorized, executed
and delivered by the Company, and each of the Agreement and the Indenture
constitutes a legal, valid and binding instrument enforceable against the
Company in accordance with its terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to time in effect and
to general principles of equity); and the Securities have been duly authorized,
and, when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Purchasers, will have been duly
executed and delivered by the Company and will constitute the legal, valid and
binding obligations of the Company entitled to the benefits of the Indenture
(subject, as to the enforcement of remedies, to applicable bankruptcy,
insolvency, moratorium or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity).
3.5 Governmental Consents, Etc.
No consent, approval, authorization, filing with or order of any court
or governmental agency or body is required in connection with the transactions
contemplated herein or in the Indenture or the Registration Rights Agreement,
except such as will be obtained under the Securities Act of 1933 (the
"Securities Act") and the Trust Indenture Act in connection with the
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transactions contemplated by the Registration Rights Agreement and such as may
be required
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under the blue sky or securities laws of any jurisdiction in connection with the
transactions contemplated by this Agreement and the Registration Rights
Agreement.
3.6 No Untrue Statements
The Final Memorandum did not contain any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, as of November 26, 2002. Since November 26, 2002, there has been no
material adverse change, or any development regarding a prospective change, in
or affecting the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a whole,
except as set forth in the Company's periodic and current reports filed with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
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Exchange Act of 1934, as amended (the "Exchange Act"), from November 26, 2002
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through January 12, 2003, the draft earnings press release (the "Draft Release")
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relating to the Company's fourth quarter and fiscal year 2002 financial results,
or in Exhibit A to the Commitment Letter, dated as of January 12, 2003 (the
"Commitment Letter") between the Company and the Purchasers. The Draft Release
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is complete and correct in all material respects as of the date hereof.
4. Representations And Warranties Of The Purchasers.
The Purchasers hereby represent and warrants, jointly and severally, to
the Company as follows:
4.1 Requisite Power And Authority.
The Agreement has been duly authorized, executed and delivered by each
Purchaser, and constitutes a legal, valid and binding instrument enforceable
against such Purchaser in accordance with its terms (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from time to time
in effect and to general principles of equity).
4.2 Consents.
No consent, approval, authorization, filing with or order of any court
or governmental agency or body is required in connection with the transactions
contemplated herein, except such as will be obtained under the Securities Act
and the Trust Indenture Act in connection with the transactions contemplated by
the Registration Rights Agreement and such as may be required under the blue sky
or securities laws of any jurisdiction in connection with the transactions
contemplated by this Agreement and the Registration Rights Agreement.
4.3 Investment Representations.
Each Purchaser understands that the Securities have not been registered
under the Securities Act. Each Purchaser also understands that the Securities
are being offered and sold pursuant to an exemption from registration contained
in the Securities Act based in part upon such Purchaser's representations
contained in the Agreement. The Purchasers hereby represent and warrant, jointly
and severally, as follows:
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(a) Purchaser Is A Qualified Institutional Buyer. Each
Purchaser represents that it is a "qualified institutional buyer" within the
meaning of 144A of the Securities Act.
(b) Purchaser Bears Economic Risk. Each Purchaser understands
that the Securities may not be sold, transferred, or otherwise disposed of
without registration under the Securities Act or an exemption therefrom, and
that in the absence of an effective registration statement covering the
Securities or an available exemption from registration under the Securities Act,
the Securities must be held indefinitely. Each Purchaser hereby represents and
agrees to the restrictions on transfer of the Notes set forth on pages 129
through 131 of the Final Memorandum.
(c) Acquisition For Own Account. Each Purchaser is purchasing
the Securities for its own account, not as a nominee or agent, and not with a
view to the resale or distribution of any part thereof, and each Purchaser has
no present intention of selling, granting any participation in, or otherwise
distributing the same. None of the Purchasers have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of the
Securities.
(d) Purchaser Can Protect Its Interest. Each Purchaser
represents that by reason of its, or of its management's, business or financial
experience, such Purchaser has the capacity to protect its own interests in
connection with the transactions contemplated in this Agreement. None of the
Purchasers are a corporation, trust or partnership specifically formed for the
purpose of consummating these transactions.
(e) No Action Jeopardizing Private Placement. Each Purchaser
represents that it is not aware of any reason why it should not qualify as an
investment in a private placement, and that it is not aware of taking any action
that would make a private placement transaction unavailable.
(f) Company Information. Each Purchaser has had an opportunity
to discuss the Company's business, management and financial affairs with
directors, officers and management of the Company and has had the opportunity to
review the Company's operations, facilities, and the any of the Company's
releases and its periodic and current reports filed with the Commission pursuant
to the Exchange Act, the Draft Release, and the information contained in Exhibit
A to the Commitment Letter.
Each Purchaser has also had the opportunity to ask questions of and receive
answers from, the Company and its management regarding the terms and conditions
of this investment.
5. Conditions To Closing.
5.1 Conditions To The Purchasers' Obligations At The Closing.
The Purchasers' obligation to purchase the Securities identified in
Section 1 of the Agreement at the Closing are subject to the satisfaction, at or
prior to the Closing, of the following conditions:
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(a) Representations And Warranties True; Performance Of
Obligations. The representations and warranties made by the Company in Section 3
and the representations and warranties which are incorporated by reference in
Annex 1 shall be true and correct in all material respects as of the Closing
(except to the extent expressly made as of an earlier date, in which case, as of
such earlier date), and the Company shall have performed and complied with all
material obligations and conditions herein required to be performed or complied
with by it on or prior to the Closing.
(b) Legal Investment. At the time of the Closing, the sale and
issuance of the Securities shall be legally permitted by all laws and
regulations to which the Purchasers and the Company are subject.
(c) Legal Opinion. The Company shall have delivered an opinion
of counsel to the Purchasers in substantially the form attached hereto as
Exhibit C.
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(d) Transfer Agent Instructions. The Company shall have
delivered to the Purchasers a copy of a letter to the Company's transfer agent,
dated the Closing Date, and instructing the transfer agent to issue the
Securities.
5.2 Conditions To Obligations Of The Company.
The Company's obligation to issue and sell the Securities at the
Closing is subject to the satisfaction, on or prior to the Closing of the
following conditions:
(a) Representations And Warranties True. The representations
and warranties made by the Purchasers in Section 4 hereof shall be true and
correct in all material respects as of the Closing, with the same force and
effect as if they had be made on and as of the Closing.
(b) Performance Of Obligations. The Purchasers shall have
performed and complied with all material obligations and conditions herein
required to be performed or complied with by it on or prior to the Closing.
(c) Payment of Purchase Price. The Purchasers shall have
delivered to the Company payment for the Securities to be acquired by the
Purchasers in the amounts set forth in Section 1 hereto pursuant to the wire
instructions provided by the Company.
6. Rule 144 Reporting.
So long as any of the Securities are "restricted securities" within the
meaning of Rule 144(a)(3) under the Securities Act, the Company will, during any
period in which it is not subject to and in compliance with Section 13 or 15(d)
of the Exchange Act or it is not exempt from such reporting requirements
pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act,
provide to the Purchasers and to each prospective purchaser (as designated by
any of the Purchasers) of such restricted securities, upon the request of any of
the Purchasers or the prospective purchaser, any information required to be
provided by Rule 144A(d)(4) under the Securities Act. This covenant is intended
to be for the benefit of the Purchasers, and the
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prospective purchasers designated by any of the Purchasers, from time to time of
such restricted securities.
7. Covenants.
7.1 Transfer Restrictions.
The Purchasers acknowledge and agree that they have received material
non-public information regarding the Company and that the Purchasers shall not
purchase or sell, offer to purchase or sell or agree to purchase or sell,
directly or indirectly, any securities or derivative securities of the Company
while in possession of such material non-public information in violation of the
U.S. securities laws. In addition, the Purchasers agree to be bound by the
transfer restrictions set forth on pages 129 through 131 of the Final
Memorandum.
7.2 Registration Rights.
The Company shall provide the Securities purchased by the Purchasers
the benefits of registration rights identical to those applicable to the
Securities purchased under the November Purchase Agreement and include such
Securities in the exchange offer registration statement that will be filed with
the Commission relating to the Securities purchased under the November Purchase
Agreement.
8. Miscellaneous.
8.1 Governing Law.
This Agreement will be governed by and construed in accordance with the
laws of the State of New York applicable to contracts made and to be performed
within the State of New York.
8.2 Survival.
The respective agreements, representations, warranties, indemnities and
other statements of the Company or its officers and of the Purchasers set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any of the Purchasers or
the Company, as the case may be, and will survive delivery of and payment for
the Securities; provided, however, that the representations and warranties of
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the Company shall be deemed to be made at the Closing Date only.
8.3 Successors And Assigns.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, and, except as expressly set
forth in Section 5(h) of the November Purchase Agreement, no other person will
have any right or obligation hereunder. This Agreement may not be assigned
without the express written consent of the Company and the Purchasers.
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8.4 Separability.
In case any provision of the Agreement shall be invalid, illegal or
unenforceable, such provision shall, to the extent practicable, be modified so
as to make it valid, legal and enforceable and to maintain as nearly as
practicable the intent of the parties, and the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
8.5 Amendment And Waiver.
(a) This Agreement may be amended or modified only upon the
written consent of the parties hereto.
(b) The obligations of the Company and the rights of any
holder of the Securities under this Agreement may be waived only with the
written consent of the parties hereto.
(c) Except to the extent provided in this Section 8.5, neither
this Agreement nor any provision hereof may be changed, waived, discharged or
terminated, except by a statement in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought.
(d) Any amendment or waiver effected in accordance with this
Section 8.5 shall be binding upon any future holder of some or all of the
Securities.
8.6 Notices.
All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representatives, will be mailed, delivered or
telefaxed to AIG Global Investment Corporation, Attn: Private Placement
Department (fax no.: (000) 000-0000) and confirmed to AIG Global Investment
Corp., Attn: Xxxxxxx Xxxxxxxxx Xxxxxxxxxx, X00-00, X.X. Xxx 0000, Xxxxxxx,
Xxxxx, 00000-0000, with a copy to AIG Global Investments Corporation, Legal
Department - Investment Management, 0000 Xxxxx Xxxxxxx, Xxxxx X00-00, Xxxxxxx,
XX, 00000-0000 (fax no.: (000) 000-0000); or, if sent to the Company, will be
mailed, delivered or telefaxed to (000) 000-0000 and confirmed to it at Levi's
Plaza, 0000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000, attention of the Legal
Department.
8.7 Expenses.
The Company shall pay all costs and expenses that it incurs with
respect to the negotiation, execution, delivery and performance of the
Agreement, and the Purchasers shall pay all costs and expenses that it incurs
with respect to the negotiation, execution, delivery and performance of this
Agreement.
8.8 Attorneys' Fees.
If legal action is brought to enforce or interpret this Agreement, the
prevailing party shall be entitled to recover its reasonable attorneys' fees and
legal costs in connection therewith.
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8.9 Headings.
The section headings used herein are for convenience only and shall not
affect the construction hereof.
8.10 Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute
one and the same instrument.
8.11 Broker's Fees.
Each party hereto represents and warrants that no agent, broker,
investment banker, person or firm acting on behalf of or under the authority of
such party hereto is or will be entitled to any broker's or finder's fee or any
other commission directly or indirectly in connection with the transactions
contemplated herein.
8.12 Subsequent Consents, Permits and Waivers.
The Company shall obtain promptly after the Closing all authorizations,
approvals, consents, permits and waivers that are necessary or applicable for
consummation of the transactions contemplated by this Agreement and that were
not obtained prior to the Closing because they may be properly obtained
subsequent to the Closing.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
LEVI XXXXXXX & CO.
By:___________________________________________
Name:
Title:
PURCHASERS:
VALIC COMPANY II - HIGH YIELD BOND
FUND
VALIC COMPANY II - STRATEGIC BOND
FUND
SUNAMERICA INCOME FUNDS SERIES -
SUNAMERICA HIGH YIELD BOND FUND
SUNAMERICA INCOME FUNDS SERIES -
SUNAMERICA STRATEGIC BOND FUND
SUNAMERICA SERIES TRUST -
SUNAMERICA HIGH YIELD BOND FUND
RMF HIGH YIELD STRATEGIES, LTD.
LAFAYETTE LIFE INSURANCE COMPANY -
HIGH YIELD
STANDARD INSURANCE COMPANY
AMERICAN GENERAL CBO 2000-1 LTD.
THE UNITED STATES LIFE INSURANCE
COMPANY
SUNAMERICA LIFE INSURANCE COMPANY
AIG GLOBAL INVESTMENT CORP.,
as Investment Advisor to each Purchaser
By:___________________________________________
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
Annex 1
LEVI XXXXXXX & CO.
SCHEDULE OF REPRESENTATIONS AND WARRANTIES FROM THE NOVEMBER
PURCHASE AGREEMENT
Pursuant to Section 3 of the Securities Purchase Agreement, dated as of
January 15, 2003, (the "Agreement"), among Levi Xxxxxxx & Co (the "Company") and
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the purchasers set forth on Schedule 1 thereto (the "Purchasers"), the Company
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hereby delivers this Schedule of Certain Representations and Warranties given by
the Company in the Purchase Agreement, dated as of November 26, 2002 (the
"November Purchase Agreement"), among the Company and the purchasers named in
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such agreement. Each of the following representations and warranties shall be
true and correct in all material respects as of the Closing, except, if they
have been made as to a previous date, then they shall be true and correct as of
that date. Any capitalized terms not otherwise defined herein shall have the
meaning ascribed to them in the November Purchase Agreement.
(a) All documents filed by the Company under the Exchange Act (the
"Exchange Act Documents"), when they were filed with the Commission, complied as
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to form in all material respects with the requirements of the Exchange Act, and
the rules and regulations of the Commission thereunder, and, when they were so
filed, did not contain any untrue statement of material fact or omit to state
any material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf (other than the Initial Purchasers, as to whom the
Company makes no representations) has, directly or indirectly, made offers or
sales of any security, or solicited offers to buy any security, under
circumstances that would require the registration of the Securities under the
Act.
(c) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf (other than the Initial Purchasers, as to whom the
Company makes no representations) has engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of the Securities in the United States.
(d) Neither the Company, nor any of its Affiliates, nor any person
acting on its or their behalf has engaged in any directed selling efforts with
respect to the Securities, and each of them has complied with the offering
restrictions requirements of Regulation S. Terms used in this paragraph have the
meanings given to them by Regulation S.
(e) The Company is not, and after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described
in the Final Memorandum will not be, an "investment company" within the meaning
of the Investment Company Act,
without taking account of any exemption arising out of the number of holders of
the Company's securities.
(f) The Company is subject to and in full compliance with the reporting
requirements of Section 13 and Section 15(d) of the Exchange Act.
(g) The Company has not paid or agreed to pay to any person any
compensation for soliciting another to purchase any securities of the Company
(except as contemplated by the November Purchase Agreement).
(h) The Company has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Securities.
(i) All the outstanding shares of capital stock of each subsidiary have
been duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Final Memorandum and
other than the Company's subsidiaries in Japan and Turkey, all outstanding
shares of capital stock of the subsidiaries are owned by the Company either
directly or through wholly owned subsidiaries free and clear of any perfected
security interest or any other security interests, claims, liens or
encumbrances.
(j) The Company's authorized equity capitalization is as set forth in
the Final Memorandum, and the Voting Trust Agreement entered into as of April
15, 1996, among the Voting Trustees and stockholders of the Company conforms in
all material respects to the description thereof contained in the Final
Memorandum.
(k) The statements in the Final Memorandum under the headings
"Important Federal Income Tax Considerations", "Description of Notes", "Exchange
Offer; Registration Rights", "Business-Trademarks", "Business--Legal
Proceedings", "Risk Factors--Our success depends on the continued protection of
our trademarks and other proprietary intellectual property rights" and in the
fourth paragraph under "Business--Sourcing, Manufacturing and
Logistics--Manufacturing and Finishing", insofar as such statements summarize
legal matters, agreements, documents or proceedings discussed therein, are, in
all material respects, accurate and fair summaries of such legal matters,
agreements, documents or proceedings.
(l) The consolidated historical financial statements and schedules of
the Company and its consolidated subsidiaries included in the Final Memorandum
or the Exchange Act Documents present fairly in all material respects the
financial condition, results of operations and cash flows of the Company as of
the dates and for the periods indicated, comply as to form with the applicable
accounting requirements of the Act and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted therein); and the
selected financial data set forth under the caption "Selected Historical
Consolidated Financial Data" in the Final Memorandum fairly present, on the
basis stated in the Final Memorandum, the information included therein.
2
(m) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries or its or their property is pending or, to the best
knowledge of the Company, threatened that (i) could reasonably be expected to
have a material adverse effect on the performance of the Agreement, the
Indenture or the Registration Rights Agreement, or the consummation of any of
the transactions contemplated hereby or thereby; or (ii) could reasonably be
expected to have a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Memorandum (exclusive of any amendment or supplement
thereto).
(n) The Company and each of its subsidiaries own, lease or license all
such properties as are necessary to the conduct of their respective operations
as presently conducted.
(o) Neither the Company nor any subsidiary is in violation or default
of (i) any provision of its charter or bylaws; (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which it is a
party or bound or to which its property is subject; or (iii) any statute, law,
rule, regulation, judgment, order or decree applicable to the Company or any of
its subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the
Company or such subsidiary or any of its properties, as applicable, other than
such violations or defaults the occurrence of which would not reasonably be
expected to have a Material Adverse Effect, whether or not arising from the
transactions in the ordinary course of business.
(p) KPMG LLP, who have reviewed certain financial statements of the
Company and its consolidated subsidiaries included in the Final Memorandum, are
independent public accountants with respect to the Company within the meaning of
the Act and the applicable published rules and regulations thereunder. Xxxxxx
Xxxxxxxx LLP, who has previously certified certain financial statements of the
Company and its consolidated subsidiaries and previously delivered their report
with respect to the audited consolidated financial statements and schedules
included in the Final Memorandum or the Exchange Act Documents, were at all
times during their engagement by the Company independent public accountants with
respect to the Company within the meaning of the Act and the applicable
published rules and regulations thereunder.
(q) To the Company's knowledge, there are no material stamp or other
issuance or transfer taxes or duties or other material similar fees or charges
required to be paid in connection with the execution and delivery of this
Agreement or the issuance or sale by the Company of the Securities.
(r) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof,
except in any case in which the failure so to file would not have a Material
Adverse Effect, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Final Memorandum
(exclusive of any amendment or supplement thereto) and has paid all taxes
required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable, except
for any such tax or other assessment, fine or
3
penalty that is currently being contested in good faith or as would not have a
Material Adverse Effect, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the Final
Memorandum (exclusive of any amendment or supplement thereto).
(s) No labor problem or dispute with the employees of the Company or
any of its subsidiaries exists or is threatened or imminent, and the Company is
not aware of any existing or imminent labor disturbance by the employees of any
of its or its subsidiaries' principal suppliers, contractors or customers that
in any such case could have a Material Adverse Effect, whether or not arising
from transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Memorandum (exclusive of any amendment or supplement
thereto).
(t) The Company and each of its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are reasonable and customary in the businesses in which they are
engaged; all policies of insurance and fidelity or surety bonds insuring the
Company or any of its subsidiaries or their respective businesses, assets,
employees, officers and directors are in full force and effect, except when the
failure to be in full force and effect would have a Material Adverse Effect; the
Company and its subsidiaries are in compliance with the terms of such policies
and instruments in all material respects; except as would not have a Material
Adverse Effect, there are no claims by the Company or any of its subsidiaries
under any such policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause; and neither the
Company nor any such subsidiary has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse Effect,
whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Memorandum (exclusive of any
amendment or supplement thereto).
(u) No subsidiary of the Company is currently contractually prohibited,
directly or indirectly, from paying any dividends to the Company, from making
any other distribution on such subsidiary's capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary's property or assets to the Company or any
other subsidiary of the Company, except as described in or contemplated by the
Final Memorandum or the Company's Credit Agreement dated as of February 1, 2001,
among the Company, the banks, financial institutions and other institutional
lenders listed on the signature pages thereto, Bank of America, N.A., as swing
line bank, Banc of America Securities LLC and Xxxxxxx Xxxxx Barney Inc., as
co-lead arrangers and joint book managers, Citicorp USA, Inc., as syndication
agent, The Bank of Nova Scotia, as documentation agent, and Bank of America,
N.A., as the administrative and collateral agent, as amended as of July 11,
2001, January 28, 2002 and July 26, 2002 (the "Existing Bank Credit Facility");
-----------------------------
the Indenture, dated as of July 31, 2001, by and between Levi Xxxxxxx
Receivables Funding, LLC, as issuer, and Citibank, N.A. as Indenture Trustee,
Paying Agent, Authentication Agent, Transfer Agent and Registrar, and all
documents related thereto (together, the "Domestic Receivables Securitization
-----------------------------------
Facility"); and the European Receivables Agreement, dated February 2000,
--------
4
between the Company and Tulip Asset Purchase Company B.V., and all documents
related thereto (together, the "European Securitization Agreements").
----------------------------------
(v) The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses, other than such licenses, certificates, permits or other
authorizations, the failure of which to possess would not have a Material
Adverse Effect, and neither the Company nor any such subsidiary has received any
notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a Material
Adverse Effect, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Final Memorandum
(exclusive of any amendment or supplement thereto).
(w) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; and (iii) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. The Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-14 under the Exchange Act) that are effective in
ensuring that information required to be disclosed by the Company in the reports
that it files or submits under the Exchange Act is recorded, processed,
summarized and reported, within the time periods specified in the rules and
forms of the Securities and Exchange Commission, including, without limitation,
controls and procedures designed to ensure that information required to be
disclosed by the Company in the reports that it files or submits under the
Exchange Act is accumulated and communicated to the Company's management,
including its principal executive officer or officers and its principal
financial officer or officers, as appropriate to allow timely decisions
regarding required disclosure.
(x) In the ordinary course of its business, the Company periodically
reviews the effect of applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws") on the business, operations and properties
------------------
of the Company and its subsidiaries, in the course of which it identifies and
evaluates associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of properties
or compliance with Environmental Laws, or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties); on the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, singly or in the
aggregate, have a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Memorandum (exclusive of any amendment or supplement
thereto).
(y) Except as would not have a Material Adverse Effect, each of the
Company and its subsidiaries has fulfilled its obligations, if any, under the
minimum funding
5
standards of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and the regulations and published
-----
interpretations thereunder with respect to each "plan" (as defined in Section
3(3) of ERISA and such regulations and published interpretations) in which
employees of the Company and its subsidiaries are eligible to participate and
each such plan is in compliance in all material respects with the presently
applicable provisions of ERISA and such regulations and published
interpretations; the Company and its subsidiaries have not incurred any unpaid
liability to the Pension Benefit Guaranty Corporation (other than for the
payment of premiums in the ordinary course) or to any such plan under Title IV
of ERISA.
(z) The subsidiaries listed on Annex A attached to the November Purchase
Agreement are the only significant subsidiaries of the Company as defined by
Rule 1-02 of Regulation S-X under the Act (the "Subsidiaries").
------------
(aa) The Company and its subsidiaries own, possess, license or have other
rights to use, on reasonable terms, all patents, patent applications, trade and
service marks (including the Levi's(R), Dockers, Slates(R) and Levi Xxxxxxx
SignatureTM trademarks), trade and service xxxx registrations, trade names,
copyrights, licenses, inventions, trade secrets, technology, know-how and other
intellectual property (collectively, the "Intellectual Property") necessary for
---------------------
the conduct of the Company's business as now conducted free and clear of any
material security interests, claims, liens or encumbrances, except as would not
have a Material Adverse Effect or as set forth in or contemplated in (i) the
Final Memorandum (exclusive of any amendment or supplement thereto) or (ii) the
Existing Bank Credit Facility, and none of the Intellectual Property, to the
best knowledge of the Company, conflicts with the valid trademark, trade name,
copyright, patent, patent right or intangible asset of any other Person to the
extent that such conflict has or would have a Material Adverse Effect.
6
Annex 2
LEVI XXXXXXX & CO.
COMPANY SCHEDULE OF EXCEPTIONS
Pursuant to Section 3 of the Securities Purchase Agreement, dated as of
January 15, 2003 (the "Agreement"), among the Levi Xxxxxxx & Co. (the "Company")
--------- -------
and the purchasers set forth in Schedule 1 thereto (the "Purchasers"), the
----------
Company hereby delivers this Schedule of Exceptions to the representations and
warranties of the Company given in the Agreement. Each section number in this
Schedule of Exceptions corresponds to the section numbers in the Agreement;
however, any information disclosed herein under any section number shall be
deemed to be disclosed and incorporated in any other section number of the
Agreement where such disclosure would be appropriate. Any capitalized terms not
otherwise defined herein shall have the meaning ascribed to them in the
Agreement.
3.1 Organization; Good Standing and Qualification
---------------------------------------------
No Exceptions.
3.2 Authorization; Binding Obligations
----------------------------------
No Exceptions.
3.3 Absence of Conflicts
--------------------
No Exceptions.
3.4 Valid Issuance of Securities
----------------------------
No Exceptions.
3.5 Governmental Consents, Etc.
---------------------------
No Exceptions.
3.6 No Untrue Statements
--------------------
No Exceptions.
SCHEDULE I
----------
Principal Amount of
-------------------
Securities to be
----------------
Purchaser Purchased
--------- ---------
VALIC Company II - High Yield Bond Fund 125,000
VALIC Company II - Strategic Bond Fund 50,000
SunAmerica Income Funds Series - SunAmerica High Yield Bond Fund 1,000,000
SunAmerica Income Funds Series - SunAmerica Strategic Bond Fund 150,000
SunAmerica Series Trust - SunAmerica High Yield Bond Fund 1,250,000
RMF High Yield Strategies, Ltd. 750,000
Lafayette Life Insurance - High Yield 100,000
Standard Insurance Company 450,000
American General CBO 2000-1 Ltd. 3,000,000
The United States Life Insurance Company 21,550,000
SunAmerica Life Insurance Company 21,575,000
EXHIBIT C
_____________________, 2003
To the Purchasers of the Securities
of Levi Xxxxxxx & Co. pursuant to
the Securities Purchase Agreement
dated as of the date hereof
Ladies and Gentlemen:
We have acted as counsel to Levi Xxxxxxx & Co., a Delaware corporation
(the "Company"), in connection with the issuance and sale by the Company to the
-------
purchasers set forth on Schedule 1 to the Purchase Agreement (as hereinafter
defined) (the "Purchasers") of $50,000,000 aggregate principal amount of the
----------
Company's 12 1/4% Senior Notes Due 2012 (the "Securities"), subject to the terms
----------
and conditions set forth in the Securities Purchase Agreement dated January 15,
2002 (the "Purchase Agreement"), among the Company and the Purchasers. The
------------------
Securities are to be issued under an Indenture, dated as of December 4, 2002
(the "Indenture"), between the Company and Wilmington Trust Company, as trustee
---------
(the "Trustee"). Capitalized terms used herein without definition have the
-------
meanings specified therefor in the Purchase Agreement.
In such capacity, we have examined copies of the preliminary offering
memorandum dated November 25, 2002 and the final offering memorandum dated
November 26, 2002 (such final offering memorandum, including the information
incorporated by reference therein, being hereafter referred to as the "Final
-----
Memorandum"). We have also examined the Purchase Agreement, the Purchase
----------
Agreement, dated as of November 26, 2002 (the "November Purchase Agreement"),
---------------------------
between the Company and the purchasers named in such agreement, the Indenture, a
specimen of the Securities and the originals, or copies identified to our
satisfaction, of such corporate records of the Company, certificates of public
officials, officers of the Company and other persons, and such other documents,
agreements and instruments as we have deemed necessary as a basis for the
opinions hereinafter expressed. In our examinations, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity with the originals of all documents submitted to
us as copies. In rendering the opinions expressed below, we have relied as to
factual matters to the extent we deem proper, upon the representations and
warranties contained in or made pursuant to the Purchase Agreement, certificates
of officers of the Company and certificates of public officials.
Our opinions set forth below are limited to the laws of the State of
New York, the State of California, the General Corporation Law of the State of
Delaware and the federal laws of the United States, and we do not express any
opinion herein concerning any other law.
Based upon and subject to the foregoing, we are of the opinion that:
(i) The Indenture has been duly authorized, executed and delivered by
the Company and the Trustee, and constitutes a legal, valid and binding
agreement of the Company enforceable against the Company in accordance with its
terms, except as (x) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally (including, without limitation, all laws relating to fraudulent
transfers) and (y) the enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law);
(ii) The Securities have been duly and validly authorized and executed
by the Company and, assuming due authentication by the Trustee, when delivered
and paid for in accordance with the Indenture and the Purchase Agreement, the
Securities will be (x) legal, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, except as (A)
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally (including
without limitation, all laws relating to fraudulent transfers) and (B) the
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law) and (y)
entitled to the benefits of the Indenture;
(iii) The statements set forth under the heading "Description of Notes"
and "Exchange Offer; Registration Rights" in the Final Memorandum, in each case
insofar as such statements purport to summarize certain provisions of the
Securities and the Indenture, provide, in all material respects, a fair summary
of such provisions;
(iv) The Purchase Agreement has been duly authorized, executed and
delivered by the Company;
(v) None of the execution and delivery of the Purchase Agreement, the
issue and sale of the Securities, nor the consummation of any other of the
transactions contemplated therein, nor the fulfillment of the terms thereof will
conflict with, result in a breach or violation of, or imposition of any lien,
charge or encumbrance upon any property or asset of the Company or any of its
subsidiaries pursuant to, (i) the charter or by-laws of the Company; (ii) the
terms of the Indenture; (iii) the terms of the Existing Bank Credit Facility (as
defined in the November Purchase Agreement), as amended as of and including
November 26, 2002, including any covenant contained therein; (iv) the terms of
the Existing Indentures (as defined in the November Purchase Agreement) and any
amendments thereto, including any covenant contained therein; or (v) any law,
rule or regulation of the United States applicable to securities transactions or
the General Corporation Law of the State of Delaware;
(vi) Based upon the representations, warranties and agreements of the
Company and of you in the Purchase Agreement, it is not necessary in connection
with the offer, sale and delivery of the Securities to you under the Purchase
Agreement and the Final Memorandum to register the Securities under the Act or
to qualify the Indenture under the Trust Indenture Act (it being understood that
no opinion is expressed as to any subsequent resale of any Security); and
(vii) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described
in the Final Memorandum,
2
will not be an "investment company" as defined in the Investment Company Act
without taking account of any exemption arising out of the number of holders of
the Company's securities.
This letter is being furnished to you solely for your benefit
in connection with your purchase of the Securities, and is not to be used,
circulated, quoted or otherwise referred to for any other purpose.
Very truly yours,
JDW/MKH/DL/SPH
3
