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Exhibit 1.01
TERMS AGREEMENT
March 16, 2001
Xxxxxxx Xxxxx Xxxxxx Holdings Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer
Dear Sirs:
We understand that Xxxxxxx Xxxxx Barney Holdings Inc., a New York
corporation (the "Company"), proposes to issue and sell $1,000,000,000 aggregate
principal amount of its 5.875% Notes due March 15, 2006 (the "Securities").
Subject to the terms and conditions set forth herein or incorporated by
reference herein, we, as underwriters (the "Underwriters"), offer to purchase,
severally and not jointly, the principal amount of the Securities as set forth
opposite our respective names on the list attached hereto at 99.358% of the
principal amount thereof. The Closing Date shall be March 23, 2001 at 9:00 a.m.
at the offices of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, Xxx Xxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
The Securities shall have the following terms:
Title: 5.875% Notes due March 15, 2006
Maturity: March 15, 2006
Interest Rate: 5.875%
Interest Payment Dates: March 15 and September 15, commencing September 15, 2001
Regular Record Dates: February 28 (or February 29 in the case of the March 15,
2004 Interest Payment Date) or August 31, commencing
August 31, 2001
Initial Price To Public: 99.708% of the principal amount thereof, plus
accrued interest from March 23, 2001 to date of payment
and delivery
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Redemption Provisions: The Securities are not redeemable by the Company prior to
maturity, except upon the occurrence of certain events
involving United States Taxation, as set forth in the
Prospectus Supplement, dated March 16, 2001, to the
Prospectus, dated February 23, 2001
Trustee: The Chase Manhattan Bank
Indenture: Indenture, dated as of January 18, 1994, as supplemented
by a First Supplemental Indenture, dated as of November
28, 1997, and as supplemented by a Second Supplemental
Indenture, dated as of July 1, 1999, and as amended from
time to time
All the provisions contained in the document entitled "Xxxxxxx Xxxxx
Xxxxxx 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 Underwriters hereby agree that the
Securities will be in the form of Book-Entry Notes and shall be delivered
on March 23, 2001 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) Paragraph 4(j) of the Basic Provisions shall be amended and restated as
follows: "The Company will not, without the consent of Xxxxxxx Xxxxx Barney
Inc., offer, sell, contract to offer or sell or otherwise dispose of any
securities, including any backup undertaking for such securities, of the
Company, in each case that are substantially similar to the Securities or
any security convertible into or exchangeable for the notes or such
substantially similar securities, during the period beginning the date of
the Terms Agreement and ending the Closing Date."
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The Underwriters hereby agree 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.
Each Underwriter further agrees and hereby represents that:
- it has not offered or sold, and, prior to the expiration of the
period of six months from the closing date for the issuance of the
notes, will not offer or sell any notes to persons in the United Kingdom,
except to those 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 that 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, as amended;
- it has complied and will comply with all applicable provisions of the
Financial Services Xxx 0000 with respect to anything done by it in
relation to the notes in, from or otherwise involving the United
Kingdom;
- it has only issued or passed on, and will only issue or pass on, in the
United Kingdom any document received by it in connection with the issue
or sale of the notes to a person who is of a kind described in Article
11(3) of the Financial Services Xxx 0000 (Investment Advertisements)
(Exemptions) Order 1996, as amended, or is a person to whom the document
may otherwise lawfully be issued or passed on;
- it will not offer or sell any notes directly or indirectly in Japan or
to, or for the benefit of, any Japanese person or to others, for
re-offering or resale directly or indirectly in Japan or to any Japanese
person except under circumstances which will result in compliance with
all applicable laws, regulations and guidelines promulgated by the
relevant governmental and regulatory authorities in effect at the
relevant time. For purposes of this paragraph, "Japanese person" means
any person resident in Japan, including any corporation or other entity
organized under the laws of Japan;
- it is aware of the fact that no German selling prospectus
(Verkaufsprospekt) has been or will be published in respect of the sale
of the notes and that it will comply with the Securities Selling
Prospectus
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Act (the "SSPA") of the Federal Republic of Germany
(Wertpapier-Verkaufsprospektgesetz). In particular, each underwriter has
undertaken not to engage in a public offering (offentliche Anbieten) in
the Federal Republic of Germany with respect to any notes otherwise than
in accordance with the SSPA and any other act replacing or supplementing
the SSPA and all other applicable laws and regulations;
- the notes are being issued and sold outside the Republic of France and
that, in connection with their initial distribution, it has not offered
or sold and will not offer or sell, directly or indirectly, any notes to
the public in the Republic of France, and that it has not distributed
and will not distribute or cause to be distributed to the public in the
Republic of France this prospectus supplement, the accompanying
prospectus or any other offering material relating to the notes; and
- it and each of its affiliates have not offered or sold, and will not
offer or sell, the notes by means of any document to persons in Hong
Kong other than persons whose ordinary business it is to buy or sell
shares or debentures, whether as principal or agent or otherwise in
circumstances which do not constitute an offer to the public within the
meaning of the Hong Kong Companies Ordinance (Chapter 32 of the Laws of
Hong Kong).
Xxxxx Xxxxx, Esq., is counsel to the Company. Cleary, Gottlieb, Xxxxx
& Xxxxxxxx is counsel to the Underwriters. Cleary, Gottlieb, Xxxxx & Xxxxxxxx is
special tax counsel to the Company.
Please accept this offer no later than 9:00 p.m. on March 16, 2001, 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:
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"We hereby accept your offer, set forth in the Terms Agreement, dated
March 16, 2001, to purchase the Securities on the terms set forth therein."
Very truly yours,
XXXXXXX XXXXX BARNEY INC.
ABN AMRO INCORPORATED
BANC OF AMERICA SECURITIES LLC
BANC ONE CAPITAL MARKETS, INC.
BARCLAYS BANK PLC
XXXXXXXX & PARTNERS, L.P.
BNP PARIBAS SECURITIES CORP.
CHASE SECURITIES INC.
FIRST UNION SECURITIES, INC.
XXXXXX & COMPANY
SANTANDER CENTRAL HISPANO
INVESTMENT SECURITIES INC.
UBS WARBURG LLC
WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By XXXXXXX XXXXX BARNEY INC.
By: /s/ Xxxxx Xxxxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxxxx
Title: Managing Director
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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Principal Amount
Underwriters of Notes
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Xxxxxxx Xxxxx Barney Inc. $ 850,000,000
ABN AMRO Incorporated 12,500,000
Banc of America Securities LLC 12,500,000
Banc One Capital Markets, Inc. 12,500,000
Banco Santander Central Hispano 12,500,000
Barclays Bank PLC 12,500,000
Xxxxxxxx & Partners, L.P. 12,500,000
BNP Paribas Securities Corp. 12,500,000
Chase Securities Inc. 12,500,000
First Union Securities, Inc. 12,500,000
Xxxxxx & Company 12,500,000
Santander Central Hispano Investment Securities Inc. 12,500,000
UBS Warburg LLC 12,500,000
Westdeutsche Landesbank Girozentrale 12,500,000
Total $ 1,000,000,000
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