Exhibit 10.1
Execution Version
NOTE PURCHASE
AGREEMENT
This Note Purchase Agreement (this
“ Agreement ”) is made and entered into as of
March [ ], 2009, by and between (collectively, on behalf
of itself and any of its affiliated entities that hold notes
described herein, the “ Holder ”), and Pier
International Limited, a Hong Kong private limited company (the
“ Company ”).
RECITALS
WHEREAS, the Holder currently holds
$
principal amount of the 6.375% Convertible Senior Notes due
February 15, 2036 (the “ Outstanding Notes
”) of the Company’s parent, Pier 1 Imports, Inc.,
a Delaware corporation (the “ Parent ”);
and
WHEREAS, the Holder desires to sell
and the Company desires to purchase the Outstanding Notes held by
Holder for the Cash Payment (as defined herein), subject to and on
the terms and conditions set forth in this Agreement (the “
Transaction ”).
NOW, THEREFORE, in consideration of
the premises and the agreements set forth below, and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
ARTICLE I
Purchase of Notes
Section 1.1.
Purchase of Outstanding
Notes .
Upon the terms and subject to the
conditions of this Agreement, at the Closing (as defined herein),
the Company hereby agrees to purchase from the Holder, and the
Holder hereby agrees to sell to the Company, Outstanding Notes in
an aggregate principal amount of
$
(the “ Holder’s Notes ”) for a cash
payment of
$
(the “ Cash Payment ”).
Section 1.2.
Closing
.
The closing of the Transaction
contemplated by this Agreement (the “ Closing ”)
is anticipated to take place on the third business day after the
date hereof at the offices of Weil, Gotshal & Manges LLP,
767 Fifth Avenue, New York, NY 10153, or on such other date and at
such other place as the parties may agree in writing (the “
Closing Date ”). At the Closing, the Holder
shall deliver or cause to be delivered to the Company all right,
title and interest (free and clear of any mortgage, lien, pledge,
charge, security interest, encumbrance, title retention agreement,
option, equity or other adverse claim thereto) in and to the
Holder’s Notes and all documentation related thereto, and
whatever documents of conveyance or transfer or other
authorizations or instructions as may be necessary or desirable to
transfer to and confirm in the Company all right, title
and interest (free and clear of any mortgage,
lien, pledge, charge, security interest, encumbrance, title
retention agreement, option, equity or other adverse claim thereto)
in and to the Holder’s Notes.
Section 1.3.
Conditions to
Closing .
(i) The obligation of the
Holder hereunder to consummate the Transaction contemplated hereby
at the Closing is subject to the satisfaction, at or before the
Closing Date, of each of the following conditions, provided that
these conditions are for the Holder’s sole benefit and may be
waived by the Holder at any time in its sole discretion by
providing the Company with prior written notice thereof:
(a)
The Company shall have executed and
delivered this Agreement to the Holder; and
(b)
The Company shall have delivered to
the Holder the Cash Payment in the amount set forth in
Section 1.1.
(ii) The obligation of the
Company hereunder to consummate the Transaction contemplated hereby
at the Closing is subject to the satisfaction, at or before the
Closing Date, of each of the following conditions, provided that
these conditions are for the Company’s sole benefit and may
be waived by the Company at any time in its sole discretion by
providing the Holder with prior written notice thereof:
(a)
The Holder shall have executed and
delivered this Agreement to the Company;
(b)
The Holder (i) shall have
delivered, or caused to be delivered, to the Company all
documentation related to the right, title and interest in and to
such Holder’s Notes, and whatever documents of conveyance or
transfer as may be necessary or reasonably desirable, as determined
by the Company, to transfer to and confirm in the Company all
right, title and interest (free and clear of any mortgage, lien,
pledge, charge, security interest, encumbrance, title retention
agreement, option, equity or other adverse claim thereto) in
and to such Holder’s Notes, and (ii) shall have
provided, or caused to be provided, all instructions or
authorizations required to transfer ownership of the Holder’s
Notes to the account of the Company at The Depository Trust Company
(the “ DTC ”) and to permit the Holder’s
Notes to be eligible for clearance and settlement through the DTC;
and
(c)
The representations and warranties
of the Holder in this Agreement shall be true and correct in all
material respects on and as of the Closing Date with the same
effect as if made on and as of the Closing Date and that the Holder
shall have complied in all material respects with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to the Closing
Date.
2
ARTICLE II
Representations, Warranties and Covenants of the
Holder
The Holder hereby covenants and
makes the following representations and warranties to the Company,
Lazard Frères & Co. LLC and Lazard Capital Markets
LLC, each of which is true and correct on the date hereof and the
Closing Date and shall survive the Closing Date and the Transaction
contemplated hereby to the extent set forth herein.
Section 2.1.
Existence and
Power .
(a)
The Holder is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization and has the power, authority and
capacity to execute and deliver this Agreement, to perform its
obligations hereunder, and to consummate the Transaction
contemplated hereby.
(b)
The execution of this Agreement by
the Holder and the consummation by the Holder of the Transaction do
not and will not constitute or result in a breach, violation,
conflict or default under any note, bond, mortgage, deed,
indenture, lien, instrument, contract, agreement, lease or license
to which the Holder is a party, whether written or oral, express or
implied, or any charter or other organizational document of the
Holder, or any statute, law, ordinance, decree, order, injunction,
rule, directive, judgment or regulation of any court,
administrative or regulatory body, governmental authority,
arbitrator, mediator or similar body on the part of the Holder or
on the part of any other party thereto or cause the acceleration or
termination of any obligation or right of the Holder, except for
such breaches, conflicts, defaults, rights or violations,
conflicts, defaults or rights that would not, individually or in
the aggregate, reasonably be expected to have a material adverse
effect on the ability of the Holder to perform its obligations
hereunder.
Section 2.2.
Valid and Enforceable
Agreement; Authorization .
This Agreement has been duly
executed and delivered by the Holde
