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Exhibit 10.43
PLACEMENT AGREEMENT
This PLACEMENT AGREEMENT, dated as of November 9, 1994, by and between
HANOVER DIRECT, INC., a corporation organized and existing under the laws of the
State of Delaware (the "Borrower"), and NATIONSBANK OF NORTH CAROLINA, N.A., a
national banking association (the "Placement Agent");
W I T N E S S E T H:
WHEREAS, the Borrower intends to issue and sell from time to time its
interest bearing flexible term notes in an aggregate principal amount not to
exceed Twenty Million Dollars ($20,000,000) (the "Facility Amount") in two
separate series (the first series of such notes being hereinafter referred to as
the "Series A Notes," the second series of such notes being hereinafter referred
to as the "Series B Notes" and the Series A Notes and the Series B Notes being
hereinafter collectively referred to as the "Notes") each in an aggregate
principal amount not to exceed Ten Million Dollars ($10,000,000), pursuant to
the provisions of a Series A Note Agreement dated as of November 9, 1994 (the
"Series A Note Agreement") by and between the Borrower and Norwest Bank
Minnesota, N.A. (the "Trustee" or the "Paying Agent," as applicable), and the
Series B Note Agreement to be entered into among the Borrower, the Trustee and
the Paying Agent (the "Series B Note Agreement"; the Series A Note Agreement and
the Series B Note Agreement being hereinafter collectively referred to as the
"Note Agreement"), and to use the proceeds from such issuance and sale to
refinance and/or finance certain construction, refurbishment and related costs
of an approximately 500,000 square foot distribution facility of the Borrower
located in Roanoke, Virginia and a new retail store of Gump's, Inc., a
subsidiary of the Borrower located in San Francisco, California (the "Project");
and
WHEREAS, the payment when due of the principal of, interest on and
Purchase Price (as defined in the Note Agreement) of the Series A Notes will be
supported, to the extent provided therein, by the Series A Letter of Credit and
the payment when due of the principal of, interest on and Purchase Price of the
Series B Notes will be supported, to the extent provided therein, by the Series
B Letter of Credit (the Series A Letter of Credit and the Series B Letter of
Credit are sometimes hereinafter collectively referred to as the "Letter of
Credit"), each issued in favor of the Trustee by NationsBank of North Carolina,
N.A. (the "Bank") and each in an amount of not less than $10,145,833,
representing the principal amount of the applicable series of Notes plus 35 days
interest on such amount computed at the Maximum Rate (as defined in the Note
Agreement) on the basis of actual number of days elapsed in a year of 360 days,
all pursuant to a Credit Facilities and Reimbursement Agreement dated as of
October 12, 1994 (the "Reimbursement Agreement") by and among the Borrower, the
financial lenders listed on the signature pages of the Reimbursement Agreement,
including the Bank, and the Bank, as Agent; and
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WHEREAS, the Series A Notes are more fully described in the preliminary
private placement memorandum dated October 25, 1994 and the private placement
memorandum dated November 9, 1994 (collectively, the "Series A Placement
Memorandum") prepared in connection with the initial placement of the Notes; and
WHEREAS, the Series B Notes will be more fully described in a
Preliminary Private Placement Memorandum to be dated approximately seven days
prior to the issuance of the Series B Notes and a Private Placement Memorandum
to be dated the date of issuance of the Series B Notes (collectively, the
"Series B Placement Memorandum"; the Series A Placement Memorandum and the
Series B Placement Memorandum are hereinafter sometimes collectively referred to
as the "Placement Memorandum") prepared in connection with the initial placement
of the Series B Notes; and
WHEREAS, the Borrower has requested that the Placement Agent act as its
agent hereunder to perform certain services in connection with the placement of
the Notes upon issuance thereof, and the Placement Agent is willing to accept
such appointment and perform such services on the terms and subject to the
conditions set forth herein and in the Note Agreement;
NOW, THEREFORE, for and in consideration of the covenants herein made,
and upon the terms and subject to the conditions herein set forth, the parties
hereto agree as follows:
SECTION 1. DEFINITIONS. All capitalized terms used herein and not
otherwise herein defined shall have the meanings ascribed to them in the
applicable Note Agreement.
SECTION 2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER.
The Borrower represents and warrants to, and agrees with, the Placement Agent
that:
(a) Each of the Borrower's representations and warranties contained in
the Note Agreement and the Reimbursement Agreement are true and correct on and
as of the date hereof and are hereby made to the Placement Agent as if set forth
herein.
(b) The Borrower has taken all necessary corporate action to authorize,
execute and deliver this Agreement, the Note Agreement, the Notes and the other
documents and agreements (including, without limitation, the Reimbursement
Agreement and the Remarketing Agreement) executed and delivered (or to be
executed and delivered) in connection with the issuance of the Notes and the
other transactions contemplated hereby (collectively, the "Related Documents")
to which it is or is to be, a party, and this Agreement has been duly executed
and delivered and constitutes, and the Note Agreement, the Notes and the Related
Documents to which it is or is to be a party when duly executed and delivered by
the Borrower, will constitute the legal, valid and binding obligations of the
Borrower enforceable in accordance with their respective terms except as the
enforceability thereof may be limited
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by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and the application of general principles of equity.
(c) There is no action, suit, proceeding or inquiry, or, to the best
knowledge and information of the Borrower, any investigation, at law or in
equity, or before or by any court, public board or body or other governmental
authority, pending or, to the best knowledge and information of the Borrower,
threatened against or affecting the Borrower wherein an unfavorable decision,
ruling or finding could materially adversely affect the condition (financial or
otherwise) of the Borrower, or the transactions contemplated by this Placement
Agreement or the Placement Memorandum, or that in any manner raises any question
concerning the legality, validity or enforceability of this Placement Agreement,
the Notes, the Note Agreement or any Related Document, nor to the best knowledge
and belief of the Borrower is there any basis therefor.
(d) The execution, delivery and performance by the Borrower of this
Placement Agreement, the Note Agreement, the Notes and the Related Documents are
within the powers of the Borrower and do not and will not conflict with or
violate the articles of incorporation or bylaws of the Borrower or any order,
injunction, ruling or decree by which the Borrower or its property is bound, and
do not and will not constitute a breach of or default under any agreement,
indenture, mortgage, lease, note or other obligation, instrument or arrangement
to which the Borrower is a party or by which the Borrower or any of its property
is bound, or contravene or constitute a violation of any federal or state
constitutional or statutory provision, rule or regulation to which the Borrower
or any of its property is subject, the breach, default, contravention or
violation of which could have a material adverse effect on the business or
financial condition of the Borrower, and no approval or other action by, or
filing or registration with, any governmental authority or agency is required in
connection therewith that has not been obtained or accomplished or will not be
obtained or accomplished by the date hereof.
(e) The information relating to the Borrower and the Project contained
or incorporated by reference in the Placement Memorandum or otherwise supplied
by the Borrower in writing for inclusion therein, including, without limitation,
Appendix B thereto, does not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading. The Borrower has approved of the use and distribution of the
Placement Memorandum in connection with the placement and remarketing of the
Notes from time to time.
(f) The Borrower is not in default in the payment of the principal of
or interest on any other of its indebtedness for borrowed money or under any
instrument under or subject to which any indebtedness has been incurred and no
event has occurred and is continuing that, with the lapse of time or the giving
of notice or both, would constitute an event of default under any such
instrument.
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(g) The Borrower agrees to make available to the Placement Agent,
without cost, sufficient copies of any relevant documents pertaining to the
Borrower, as reasonably may be required from time to time for the prompt and
efficient performance by the Placement Agent of its obligations hereunder,
including its obligations in connection with the placement of the Notes from
time to time.
SECTION 3. PLACEMENT OF THE NOTES.
The Placement Agent shall, as the agent of the Borrower, arrange to
place the Notes with investors, each of which shall be an "accredited investor"
within the meaning of Rule 501(a) of Regulation D of the Securities Exchange
Commission (the "Purchasers"), on or before each Date of Issuance. The
Purchasers are to purchase the Notes at a price equal to 100% of the principal
amount thereof. It is understood that the purchase of the Notes by the
Purchasers is subject to (a) on the Date of Issuance of the Series A Notes, (i)
receipt by the Placement Agent of: opinions of counsel to the Bank and the
Borrower meeting the requirements specified in Section 2.06(a) of the Series A
Note Agreement; a letter from any Rating Agency evidencing a rating on the
Series A Notes satisfactory to the Placement Agent; a certified copy of
resolutions of the board of directors of the Borrower authorizing the execution,
delivery and performance by the Borrower of this Agreement, the Note Agreement,
the Notes and the Related Documents to which it is a party; executed copies (or
duplicates thereof) of the Related Documents, each of which shall be in form and
substance satisfactory to the Placement Agent, and such other documents,
instruments and approvals (and, if requested by the Placement Agent, certified
duplicates of executed copies thereof) and opinions as the Placement Agent may
reasonably request; and (ii) satisfaction of the other conditions specified in
Section 2.06(a) of the Series A Note Agreement and in the Related Documents; and
(b) on the Date of Issuance of the Series B Notes, satisfaction of the
conditions specified in Section 2.06(a) of the Series B Note Agreement.
Purchasers shall be required to deposit the purchase price of Notes with the
Placement Agent on or before each Date of Issuance for transfer by the Placement
Agent on such Date of Issuance as provided in Section 4 below. The Borrower
hereby approves the Placement of the Notes by the Placement Agent from time to
time to prospective Purchasers on the terms set forth herein. The Placement
Agent may execute and perform any of its duties hereunder or under the Note
Agreement through agents, attorneys, employees or co-placement agents and shall
not be responsible for the misconduct or negligence of any agent, attorney,
employee or co-placement agent appointed with due care.
SECTION 4. NOTE PROCEEDS. The Placement Agent agrees that it will, on
the applicable Date of Issuance, transfer to or at the direction of the Borrower
all proceeds from the sale of Notes issued from time to time under the Note
Agreement, but only to the extent that each Purchaser has deposited the purchase
price of the Notes to be purchased by it with the Placement Agent. If any
Purchaser does not deposit with the Placement Agent the purchase price of the
Notes to be purchased by it or otherwise refuses to purchase the Notes to be
purchased
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by it, the Placement Agent will use its best efforts to arrange for a substitute
Purchaser for such Notes on the terms set forth in Section 3 above.
SECTION 5. LIMITATION. Nothing contained in this Placement Agreement
shall obligate the Placement Agent to purchase the Notes in the event any
Purchaser fails to pay the purchase price of any Notes to be purchased by it or
in the event the Placement Agent is unable to arrange for the purchase of any of
the Notes.
SECTION 6. FEES AND EXPENSES.
(a) On each Date of Issuance, upon consummation of the transfer of all
proceeds from the sale of the Notes issued on such Date of Issuance as provided
in Section 4 above, the Borrower agrees to pay the Placement Agent a fee for its
services hereunder as set forth in that certain Engagement Letter dated July 15,
1994 from the Placement Agent to the Borrower and accepted and agreed to by the
Borrower.
(b) The Borrower also agrees to pay to the Placement Agent all
reasonable out-of-pocket costs and expenses of the Placement Agent to the extent
incurred in connection with: (i) each issuance and placement of the Notes from
time to time; (ii) the preparation, execution and delivery of this Placement
Agreement, the Placement Memorandum, the Note Agreement, the Notes, any Related
Document and any other documents contemplated to be delivered in connection
herewith or therewith; (iii) any amendment or modification of, or any default or
waiver (whether or not executed) under, this Placement Agreement, the Placement
Memorandum, the Note Agreement, the Notes, any Related Document and any other
documents contemplated to be delivered in connection herewith or therewith; and
(iv) the enforcement of any rights hereunder or thereunder or the defense of any
claim arising out of or in any way related to or connected with this Placement
Agreement, the Placement Memorandum, the Note Agreement, the Notes, any Related
Document and any other documents contemplated to be delivered in connection
herewith or therewith.
(c) The Borrower shall also pay all other fees and expenses incurred in
connection with: (i) each issuance and placement of the Notes; (ii) the
preparation, execution and delivery of this Placement Agreement, the Placement
Memorandum, the Note Agreement, the Notes, any Related Document and any other
document that may be delivered in connection herewith or therewith; (iii) any
amendment or modification of, or any default or waiver (whether or not executed)
under, this Placement Agreement, the Placement Memorandum, the Note Agreement,
the Notes, any Related Document and any other documents contemplated to be
delivered in connection herewith or therewith; and (iv) the enforcement of any
rights hereunder or thereunder or the defense of any claim arising out of or in
any way related to or connected with this Placement Agreement, the Placement
Memorandum, the Note Agreement, the Notes, any Related Document and any other
documents contemplate to be delivered in connection herewith or therewith;
including, but not limited to, the fees and expenses of counsel for the
Placement Agent, counsel for the Bank, counsel for the Borrower and counsel
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for the Trustee, the fees and expenses of the Trustee, the cost of printing and
delivery of the Notes and the Placement Memorandum, Rating Agency fees, if any,
and fees and expenses of the Bank.
(d) The fees and expenses described in paragraphs (b) and (c) above
shall be paid by the Borrower whether or not the Notes are issued or placed. All
fees and expenses described in this Section 6, to the extent they are
identifiable and billed, shall be paid on the initial Date of Issuance, and the
remainder shall be paid promptly upon receipt of statements therefor. The
obligations of the Borrower under this Section 6 shall survive the issuance and
maturity of the Notes and any termination of this Placement Agreement.
SECTION 7. RESIGNATION OR REMOVAL OF PLACEMENT AGENT.
(a) The Placement Agent may resign and be discharged of its duties and
obligations hereunder and under the applicable Note Agreement and may be removed
from all or a portion of its duties and obligations hereunder and under the
applicable Note Agreement in the manner and at the times specified in Section
8.12 of the applicable Note Agreement. Upon the resignation or removal of the
Placement Agent, the Borrower agrees to appoint a successor Placement Agent in
accordance with Section 8.12 of the applicable Note Agreement.
(b) Notwithstanding the foregoing, with the consent of the Borrower and
with prior written notice to (but without the consent of) the Trustee, the
Remarketing Agent, the Paying Agent, the Bank and the Noteholders, NationsBank
of North Carolina, N.A. may assign or transfer any or all of its rights and
obligations as Placement Agent hereunder and under the Note Agreement to any
other wholly-owned subsidiary of NationsBank Corporation so long as such
subsidiary meets the qualifications for a Placement Agent set forth in the Note
Agreement and is otherwise permitted to perform such obligations under all
applicable federal and state banking and securities laws, rules and regulations.
SECTION 8. DISCLOSURE COVENANTS. The Borrower hereby approves of the
use and distribution of the Placement Memorandum (including any amendments,
modifications and supplements thereto) and all exhibits and appendices thereto
and all other documents provided by the Borrower to the Placement Agent for use
in the placement of the Notes from time to time. The Borrower agrees to cause
the Placement Agent to be furnished with as many copies of the Placement
Memorandum and all exhibits and appendices thereto and documents incorporated by
reference therein as the Placement Agent may reasonably request and the Borrower
agrees to furnish the Placement Agent with such other information as the
Borrower deems necessary or as the Placement Agent may reasonably request from
time to time in connection with the placement of the Notes in accordance with
the terms hereof. If at any time during the term of this Placement Agreement any
event or condition known to the Borrower relating to or affecting the Borrower,
the Bank, the Project or the Notes or any document or agreement related to the
Notes or executed in connection with the issuance or
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placement thereof shall occur which might affect the accuracy or completeness of
any statement of a material fact contained in the Placement Memorandum or any
exhibit or appendix thereto or document incorporated by reference therein or any
other materials or information furnished by the Borrower to the Placement Agent
in connection with the placement, remarketing or sale of any Note hereunder, the
Borrower shall promptly notify the Placement Agent in writing of the
circumstances and details of such event or condition.
SECTION 9. INDEMNIFICATION. The Borrower agrees to indemnify and hold
harmless the Placement Agent and any member, commissioner, officer, director,
employee or agent of the Placement Agent and each person, if any, who controls
the Placement Agent within the meaning of Section 15 of the Securities Act of
1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as
amended (collectively, the "Indemnified Parties") against any and all losses,
claims, damages, liabilities or expenses whatsoever (collectively, "Loss") which
any of them may incur or suffer, without negligence, willful misconduct or bad
faith on their part, arising out of, in connection with or relating to the
placement of the Notes from time to time, including, without limitation, any
Loss caused by, or which arises out of or relates to, any breach (or alleged
breach) by the Borrower of its representations or warranties set forth herein,
or any untrue statement or misleading statement of a material fact contained in
the Placement Memorandum or incorporated therein by reference (except statements
pertaining to the Bank, the Remarketing Agent or the Placement Agent) or
supplied by the Borrower in writing in connection with the placement of Notes
from time to time in accordance with the terms hereof and of the Remarketing
Agreement (collectively, the "Disclosure Materials"), or which arises out of or
relates to, any omission or alleged omission from such Disclosure Materials of
any material fact required to be stated therein or necessary in order to make
the statements contained therein, in light of the circumstances under which they
were made, not misleading (except omissions or alleged omissions pertaining to
the Bank, the Remarketing Agent or the Placement Agent). This indemnity
agreement is in addition to any other liability that the Borrower may otherwise
have.
In case any action (including any governmental investigation) shall be
brought against one or more of the Indemnified Parties and in respect of which
indemnity may be sought as provided herein, such Indemnified Party or
Indemnified Parties shall promptly notify the Borrower in writing and the
Borrower shall promptly assume the defense thereof, including the employment of
counsel reasonably satisfactory to such Indemnified Party or Indemnified
Parties, payment of all expenses and the right to negotiate and consent to
settlement; but the omission to notify the Borrower as provided herein shall not
relieve the Borrower from any liability that it may have (i) under this Section
9, so long as the Borrower is given the reasonable opportunity to defend such
claim, and (ii) otherwise than under this Section 9. Any one or more of the
Indemnified Parties shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Party or Indemnified
Parties. The Borrower shall not be liable for any settlement of any such action
effected without its consent,
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but if settled with such consent or if there is a final judgment in any such
action with or without consent, the Borrower agrees to indemnify and hold
harmless the Indemnified Party or Indemnified Parties from and against any Loss
by reason of such settlement or judgment.
In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 9 is due
in accordance with its terms but is for any reason held by a court to be
unavailable from the Borrower or unenforceable against the Borrower on grounds
of policy or otherwise, the Borrower and the Placement Agent shall contribute
severally to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) to which the Borrower and the Placement Agent may be subject in
such proportion so that the Placement Agent is responsible for that portion
represented by the percentage that the fee referred to in Section 6(a) hereof
bears to the initial placement price for the Notes set forth in the Placement
Memorandum and the Borrower is responsible for the balance; provided, however,
that no person guilty of fraudulent misrepresentation within the meaning of
Section 11(f) of the Securities Act of 1933, as amended, shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Any party entitled to contribution shall, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party under this paragraph, notify such party from whom contribution may be
sought, but the omission so to notify such party shall not relieve the party
from whom contribution may be sought from any other obligation it or they may
have hereunder or otherwise. The liabilities under this paragraph are in
addition to any other liabilities that the parties may have.
The obligations under this Section 9 shall survive the issuance and the
maturity of the Notes and any termination of this Placement Agreement.
SECTION 10. NOTICES. Unless otherwise provided herein, all notices,
certificates, requests or other communications hereunder shall be sufficiently
given when delivered in writing by hand or sent by facsimile transmission,
tested telex or registered or certified mail, return receipt requested, postage
prepaid, or sent by any other electronic method capable of creating a written
document, addressed as follows:
If to the Trustee or the Paying Agent:
Norwest Bank Minnesota, N.A.
Norwest Center
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxx
Facsimile Transmission Number: (000) 000-0000
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If to the Borrower:
Hanover Direct, Inc.
0000 Xxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Facsimile Transmission Number: (000) 000-0000
If to the Remarketing Agent:
NationsBank of North Carolina, N.A.
NationsBank Xxxxxxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Money Market Sales Department
Facsimile Transmission Number: (000) 000-0000
If to the Placement Agent:
NationsBank of North Carolina, N.A.
NationsBank Corporate Center, 0xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: VRDN Project Manager
Facsimile Transmission Number: (000) 000-0000
If to the Bank:
NationsBank of North Carolina, N.A.
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx
Facsimile Transmission Number: (000) 000-0000
Each of the above parties may, by written notice given hereunder to the
others, designate any further or different addresses to which or means by which,
subsequent notices, certificates, requests or other communications shall be
sent.
SECTION 11. GOVERNING LAW. THIS PLACEMENT AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
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SECTION 12. COUNTERPARTS. This Placement Agreement may be executed in
several counterparts, each of which shall be an original and all of which, taken
together, shall constitute but one and the same instrument.
SECTION 13. BINDING EFFECT. This Placement Agreement shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns, except that the Borrower may not assign any of its
rights or obligations hereunder without the consent of the Placement Agent.
SECTION 14. TERMINATION. This Placement Agreement shall terminate
(except as to rights to any fees payable and rights to indemnity or
contribution, which shall survive any termination) on the earlier of (i) the
removal or resignation of the Placement Agent pursuant to Section 7 hereof or
(ii) payment in full of the Notes.
SECTION 15. MISCELLANEOUS.
(a) Nothing herein shall be construed to make any party hereto an
employee of the other or to establish any fiduciary relationship between the
Borrower and the Placement Agent, except as expressly provided herein.
(b) This Placement Agreement may be amended from time to time only by
an instrument in writing executed by all the parties hereto.
(c) The headings contained herein are for convenience of reference only
and shall not affect in any way the meaning or interpretation of this Agreement.
(d) If any one or more of the covenants, provisions or agreements
contained in this Placement Agreement shall be determined by a court of
competent jurisdiction to be invalid, the invalidity of such covenants,
provisions and agreements shall in no way affect the validity or effectiveness
of the remainder of this Placement Agreement, and this Placement Agreement shall
continue in full force and effect to the fullest extent permitted by law.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
HANOVER DIRECT, INC.
By: /s/ Xxxxxx X. X'Xxxxx
______________________________________
Title: Senior Vice President & Treasurer
_____________________________________
NATIONSBANK OF NORTH CAROLINA,
N.A.
By: /s/ Xxxxxxxx X. Xxxxx
______________________________________
Xxxxxxxx X. Xxxxx
Vice President
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