Exhibit 1.1
MACY’S RETAIL HOLDINGS, INC., COMPANY
MACY’S, INC., GUARANTOR
3.625% SENIOR NOTES DUE 2024
Underwriting Agreement
May 20, 2014
Credit Suisse Securities (USA) LLC
J.P. Morgan Securities LLC
Merrill Lynch, Pierce, Fenner &
Smith
Incorporated,
as Representatives of the several
Underwriters
c/o Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, NY 10010-3629
J.P.
Morgan Securities LLC
383 Madison Avenue
New York, NY 10179
Merrill
Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, NY 10036
Ladies and Gentlemen:
Macy’s Retail Holdings, Inc., a New York corporation (the
“Company”), proposes, subject to the terms and conditions stated herein,
to issue and sell to you (the “Underwriters”) an aggregate of
$500,000,000 principal amount of its 3.625% Senior Notes due 2024 (the “Notes”)
with the guarantee (the “Guarantee”) endorsed thereon of Macy’s, Inc., a
Delaware corporation (the “Guarantor”).
1.
Each of the Company and the Guarantor represents and warrants to,
and agrees with, each of the Underwriters that:
(a)
A registration statement (No. 333-185321), including a
prospectus, relating to certain of the Company’s unsecured debt securities
registered under said registration statement (the “Registered Securities”),
as amended, has been filed with the Securities and Exchange Commission (“Commission”)
and has become effective. “Registration Statement” as of any time means
such registration statement in the form then filed with the Commission,
including any amendment thereto, any document incorporated by reference therein
and any information in a prospectus or prospectus supplement deemed or
retroactively deemed to be a part thereof pursuant to Rule 430B (“Rule 430B”)
or 430C (“Rule 430C”) under the Securities Act of 1933, as amended (“Act”)
that has not been superseded or modified. “Registration Statement” without
reference to a time means the Registration Statement, including all amendments
thereto, as of the time of the first contract of sale for the Notes, which time
shall be considered the “Effective Date” of the Registration Statement relating
to the Notes. For purposes of this definition, information contained in a form
of prospectus or prospectus supplement that is deemed retroactively to be a part
of the Registration Statement pursuant to Rule 430B shall be considered to be
included in the Registration Statement as of the time specified in Rule 430B.
“Statutory Prospectus” as of any time means the
prospectus relating to the Notes that is included in the Registration Statement
immediately prior to that time, including any document incorporated by
reference therein and any basic prospectus or prospectus supplement deemed to
be a part thereof pursuant to Rule 430B or 430C that has not been superseded or
modified. For purposes of this definition, information contained in a form of
prospectus (including a prospectus supplement) that is deemed retroactively to
be a part of the Registration Statement pursuant to Rule 430B shall be
considered to be included in the Statutory Prospectus only as of the actual
time that form of prospectus (including a prospectus supplement) is filed with
the Commission pursuant to Rule 424(b) (“Rule 424(b)”) under the Act and
not retroactively. “Prospectus” means the Statutory Prospectus that
discloses the public offering price and other final terms of the Notes and
otherwise satisfies Section 10(a) of the Act.
“Issuer Free Writing Prospectus” means any “issuer
free writing prospectus,” as defined in Rule 433 (“Rule 433”) under the
Act, relating to the Notes in the form filed or required to be filed with the
Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g). “General Use Issuer Free Writing
Prospectus” means any Issuer Free Writing Prospectus that is intended for
general distribution to prospective investors, as evidenced by its being listed
in Schedule B to this Agreement. “Limited Use Issuer Free Writing
Prospectus” means any Issuer Free Writing Prospectus that is not a General
Use Issuer Free Writing Prospectus. “Applicable Time” means 2:50 p.m.
(Eastern Time) on the date of this Agreement.
“Securities Laws” means, collectively, the
Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley”), the Act, the Securities
Exchange Act of 1934 (the “Exchange Act”), the Trust Indenture Act of
1939 (the “Trust Indenture Act”), the rules and regulations of the
Commission (the “Rules and Regulations”), the auditing principles,
rules, standards and practices applicable to auditors of “issuers” (as defined
in Sarbanes-Oxley) promulgated or approved by the Public Company Accounting
Oversight Board and, as applicable, the rules of the New York Stock Exchange
(the “Exchange Rules”).
(b)
At the time the Registration Statement initially became effective,
at the time of each amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether by post effective amendment, incorporated
report or form of prospectus) and on the Effective Date relating to the Notes,
the Registration Statement conformed and will conform in all material respects
to the requirements of the Act, the Exchange Act, the Trust Indenture Act and
the Rules and Regulations and did not and will not include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading.
The Registration Statement on the date of this Agreement and the Prospectus on
the date of this Agreement and at the Time of Delivery will conform in all
respects to the requirements of the Act, the Trust Indenture Act and the Rules
and Regulations, and neither of such documents will include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading. This Section 1(b) does not apply to statements in or omissions
from any of such documents based upon written information furnished to the
Company by any Underwriter through Credit Suisse Securities (USA) LLC, J.P.
Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith
Incorporated as Representatives (the “Representatives”) of the several
Underwriters, if any, specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the information described as such in Section 9(b) hereof or (ii) that part of
the Registration Statement that will constitute the Statement of Eligibility
and Qualification under the Trust Indenture Act (Form T-1) of the Trustee under
the Indenture (as defined below) (the “Form T-1”).
(c) (i) (A) At the time of the initial filing of the
Registration Statement, (B) at the time of the most recent amendment thereto
for the purposes of complying with Section 10(a)(3) of the Act (whether
such amendment was by post-effective amendment, incorporated report filed
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 or form
of prospectus), and (C) at the time the Company, the Guarantor or any person
acting on their behalf (within the meaning, for this clause only, of Rule
163(c) under the Act) made any offer relating to the Notes in reliance on the
exemption of Rule 163 under the Act and (D) at the time this Agreement is
executed, the Company was a “well-known seasoned issuer” as defined in
Rule 405 (“Rule 405”) under the Act, including not having been an
“ineligible issuer” as defined in Rule 405.
(ii)
The Registration Statement is an “automatic shelf registration
statement,” as defined in Rule 405, that initially became effective within
three years of the date of this Agreement. If immediately prior to the third
anniversary (the “Renewal Deadline”) of the initial effective date of
the Registration Statement, any of the Notes remain unsold by the Underwriters,
the Company will prior to the Renewal Deadline file, if it has not already done
so and is eligible to do so, a new automatic shelf registration statement
relating to the Notes, in a form satisfactory to the Representatives. If the
Company is no longer eligible to file an automatic shelf registration
statement, the Company will prior to the Renewal Deadline, if it has not
already done so, file a new shelf registration statement relating to the Notes,
in a form satisfactory to the Representatives, and will use its reasonable best
efforts to cause such registration statement to be declared effective within
180 days after the Renewal Deadline. The Company and the Guarantor will take
all other action reasonably necessary or appropriate to permit the public
offering and sale of the Notes to continue as contemplated in the expired
registration statement relating to the Notes. References herein to the
Registration Statement shall include such new automatic shelf registration
statement or such new shelf registration statement, as the case may be.
(iii)
Neither the Company nor Guarantor has received from the
Commission any notice pursuant to Rule 401(g)(2) (“Rule 401(g)(2)”)
under the Act objecting to use of the automatic shelf registration statement
form. If at any time when Notes remain unsold by the Underwriters the Company
receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise
ceases to be eligible to use the automatic shelf registration statement form, the
Company will (i) promptly notify the Representatives, (ii) promptly file a new
registration statement or post-effective amendment on the proper form relating
to the Notes, in a form satisfactory to the Representatives, (iii) use its
reasonable best efforts to cause such registration statement or post-effective
amendment to be declared effective as soon as practicable, and (iv) promptly
notify the Representatives of such effectiveness. The Company and the
Guarantor will take all other action reasonably necessary or appropriate to
permit the public offering and sale of the Notes to continue as contemplated in
the registration statement that was the subject of the Rule 401(g)(2) notice or
for which the Company has otherwise become ineligible. References herein to
the Registration Statement shall include such new registration statement or
post-effective amendment, as the case may be.
(iv)
The Company and the Guarantor have paid or shall pay the required
Commission filing fees relating to the Notes within the time required by Rule
456(b)(1) under the Act without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) under the Act.
(d)
(i) At the time of initial filing of the Registration Statement
and (ii) at the date of this Agreement, neither the Company nor the Guarantor
was or is an “ineligible issuer,” as defined in Rule 405, including (x) the
Company, the Guarantor or any other subsidiary in the preceding three years not
having been convicted of a felony or misdemeanor or having been made the
subject of a judicial or administrative decree or order as described in Rule
405 and (y) the Company and the Guarantor in the preceding three years not
having been the subject of a bankruptcy petition or insolvency or similar
proceeding, not having had a registration statement be the subject of a
proceeding under Section 8 of the Act and not being the subject of a proceeding
under Section 8A of the Act in connection with the offering of the Notes, all
as described in Rule 405. As of the Applicable Time, neither (i) the General
Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable
Time, the preliminary prospectus, dated May 20, 2014 (which is the most recent
Statutory Prospectus distributed to investors generally) and the other
information, if any, stated in Schedule B to this Agreement to be included in
the General Disclosure Package, all considered together (collectively, the “General
Disclosure Package”), nor (ii) any individual Limited Use Issuer Free
Writing Prospectus, when considered together with the General Disclosure
Package, included any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from any
Statutory Prospectus or any Issuer Free Writing Prospectus in reliance upon and
in conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the information described as such in Section 9(b) hereof.
(e)
Each Issuer Free Writing Prospectus, as of its issue date and at
all subsequent times through the completion of the public offer and sale of the
Notes or until any earlier date that the Company notified or notifies the
Representatives as described in the next sentence, did not, does not and will
not include any information that conflicted, conflicts or will conflict with
the information then contained in the Registration Statement or preliminary
prospectus supplement. If at any time following issuance of an Issuer Free
Writing Prospectus there occurred or occurs an event or development as a result
of which such Issuer Free Writing Prospectus conflicted or would conflict with
the information then contained in the Registration Statement or preliminary
prospectus supplement or as a result of which such Issuer Free Writing
Prospectus, if republished immediately following such event or development,
would include an untrue statement of a material fact or omitted or would omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, (i)
the Company has promptly notified or will promptly notify the Representatives
and (ii) the Company has promptly amended or will promptly amend or supplement
at its own expense such Issuer Free Writing Prospectus to eliminate or correct
such conflict, untrue statement or omission. The foregoing two sentences do
not apply to statements in or omissions from any Issuer Free Writing Prospectus
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
Section 9(b) hereof.
(f)
Since the end of the period covered by the latest audited
financial statements included or incorporated by reference in the General
Disclosure Package, except as disclosed in the General Disclosure Package,
there has not been any material adverse change or any development involving a
prospective material adverse change in the business, general affairs,
management, financial position, shareholders’ equity or results of operations
of the Company, the Guarantor and their subsidiaries taken as a whole. Since
the end of the period covered by the latest audited financial statements
included or incorporated by reference in the General Disclosure Package, except
as disclosed in the General Disclosure Package, neither the Company, the
Guarantor nor any of their subsidiaries has sustained any material loss or
interference with their business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree;
(g)
The Company, the Guarantor and their subsidiaries have good and
marketable title to all real property and title to all personal property owned
by them, in each case free and clear of all liens, encumbrances and defects
except such as are disclosed in the Registration Statement, Prospectus or the
General Disclosure Package, or as do not, individually or in the aggregate,
have a material adverse effect on the business, financial position or results
of operations or reasonably foreseeable prospects of the Company, the Guarantor
and their subsidiaries taken as a whole (a “Material Adverse Effect”);
and any real property and buildings held under lease by the Company, the
Guarantor and their subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as would not, individually or in the
aggregate, have a Material Adverse Effect;
(h)
Each of the Company and the Guarantor has been duly incorporated
and is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and other)
to own its properties and conduct its business as described in the Registration
Statement, Prospectus or the General Disclosure Package, and has been duly
qualified as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it is required
to be so qualified, except where failure to be so qualified and in good
standing individually or in the aggregate would not have a Material Adverse
Effect; and each subsidiary of the Company and the Guarantor has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Registration Statement, Prospectus and the General Disclosure
Package, except where failure to be duly incorporated, validly existing and in
good standing would not, individually or in the aggregate, have a Material
Adverse Effect;
(i)
All of the issued shares of capital stock of the Guarantor have
been duly and validly authorized and issued and are fully paid and
non-assessable; all of the issued shares of capital stock of the Company and of
each Significant Subsidiary (as such term is defined in Rule 405 under the Act)
of the Company and Guarantor have been duly and validly authorized and issued,
are fully paid and non-assessable and (except as otherwise disclosed in the
Registration Statement, Prospectus or the General Disclosure Package) are owned
directly or indirectly by the Guarantor, free and clear of all material liens,
encumbrances, equities or claims; and all of the issued shares of capital stock
of each subsidiary of the Guarantor have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly or indirectly
by the Guarantor, free and clear of all liens, encumbrances, equities or claims
(except as otherwise disclosed in the Registration Statement, Prospectus or the
General Disclosure Package or where, individually or in the aggregate, the
failure to have been duly and validly authorized and issued, to be fully paid
and non-assessable and to be owned directly or indirectly by the Guarantor free
and clear of liens, encumbrances, equities or claims would not have a Material
Adverse Effect);
(j)
The Notes and the related Guarantee have been duly authorized
and, when issued and delivered pursuant to this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company and the Guarantor entitled to the
benefits provided by an Indenture (the “Base Indenture”), dated as of
January 13, 2012, as supplemented by the Sixth
Supplemental Trust Indenture with respect to the Notes (the “Sixth
Supplemental Indenture”), to be dated as of May 23, 2014 (the Base
Indenture, as so supplemented and amended, the “Indenture”), among the
Company, the Guarantor and The Bank of New York Mellon Trust Company, N.A., as
Trustee (the “Trustee”), under which the Notes and the related Guarantee
are to be issued and enforceable in accordance with their terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, and other laws of general applicability relating to or
affecting creditors’ rights and to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or at law;
the Indenture has been duly authorized, and when executed and delivered, will
be duly qualified under the Trust Indenture Act; the Base Indenture constitutes
(and the Sixth Supplemental Indenture, when executed and delivered by the
Company and the Trustee, will constitute) a valid and legally binding
instrument, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, and other laws of general applicability relating to or
affecting creditors’ rights and to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or at law;
and each of the Notes, the related Guarantee and the Indenture will conform in
all material respects to the descriptions thereof in the Registration
Statement, Prospectus or the General Disclosure Package;
(k)
The issue and sale of the Notes, the related Guarantee, and the
compliance by the Company and the Guarantor with all of the provisions of the
Notes, the related Guarantee, the Indenture and this Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, sale/leaseback agreement, loan agreement or other similar financing
agreement or instrument or other agreement or instrument to which the Company,
the Guarantor or any of their subsidiaries is a party or by which the Company,
the Guarantor or any of their subsidiaries is bound or to which any of the
property or assets of the Company, the Guarantor or any of their subsidiaries
is subject, except for such conflicts, breaches, violations and defaults as
individually or in the aggregate would not have a Material Adverse Effect, nor
will such action result in any material violation of the provisions of the
certificate of incorporation or by-laws of the Company or the Guarantor or any
material statute, order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company, the Guarantor or any of their
Significant Subsidiaries or any of their properties, nor will such action
result in any violation of the provisions of any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company, the Guarantor or any of their subsidiaries or any of their
properties except for such violations as individually or in the aggregate would
not have a Material Adverse Effect; and no consent, approval, authorization,
order, registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Notes and the related
Guarantee or the consummation by the Company or the Guarantor of the
transactions contemplated by this Agreement or the Indenture, except the
registration of the Notes and the related Guarantee under the Act, the Exchange
Act and such as have been obtained under the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Notes by the Underwriters;
(l)
Except for such of the following violations, defaults and failures
as individually or in the aggregate would not have a Material Adverse Effect,
neither the Company, the Guarantor nor any of their subsidiaries (i) is in
violation of its certificate of incorporation or by-laws (or comparable
governing documents), (ii) is in default, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in the due
performance or observance of any obligation, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound, or (iii) is in violation of any law, ordinance,
governmental rule, regulation or court decree to which it or its property is subject,
or (iv) has failed to obtain any license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership of its
property or to the conduct of its business;
(m)
The statements set forth in the Registration Statement,
Prospectus or the General Disclosure Package under the captions “Description of
Debt Securities,” “Description of Notes” and “U.S. Federal Income Tax
Considerations”, insofar as they purport to constitute a summary of the terms
of the Notes and the related Guarantee, and under the caption “Underwriting”,
insofar as it purports to describe the provisions of the laws and the documents
referred to therein, constitute accurate summaries of the terms of such
documents in all material respects;
(n)
Other than as set forth in the Registration Statement, Prospectus
or the General Disclosure Package, there are no legal or governmental
proceedings pending to which the Company, the Guarantor or any of their
subsidiaries is a party or of which any property of the Company, the Guarantor
or any of their subsidiaries is the subject which, if determined adversely to
the Company, the Guarantor or any of their subsidiaries, would individually or
in the aggregate have a Material Adverse Effect; and, to the best knowledge of the
Company and the Guarantor, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(o)
Neither the Company nor the Guarantor is and, after giving effect
to the offering and sale of the Notes and the application of the proceeds
thereof as described in the Registration Statement, Prospectus or the General
Disclosure Package, neither the Company nor the Guarantor will be an
“investment company” or an entity “controlled” by an “investment company”, as
such terms are defined in the Investment Company Act of 1940, as amended (the “Investment
Company Act”);
(p)
The interactive data in eXtensible Business Reporting Language (“XBRL”)
included or incorporated by reference in the Registration Statement fairly
presents the information called for in all material respects and has been
prepared in accordance with the Commission’s rules and guidelines applicable
thereto;
(q)
Except as set forth in the Registration Statement, Prospectus and
the General Disclosure Package, the Guarantor and its subsidiaries and the
Guarantor’s Board of Directors (the “Board”) are in compliance in all
material respects with Sarbanes-Oxley and all applicable Exchange Rules. The
Guarantor maintains a system of internal controls, including, but not limited
to, disclosure controls and procedures, internal controls over accounting
matters and financial reporting, an internal audit function and legal and
regulatory compliance controls (collectively, “Internal Controls”) that
comply with the Securities Laws and are sufficient to provide reasonable
assurances 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 and the interactive data in XBRL
included or incorporated by reference in the Registration Statement in
conformity with accounting principles generally accepted in the United States
and to maintain accountability for assets, (iii) access to assets is permitted
only in accordance with management’s general or specific authorization,
(iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to
any differences and (v) the Guarantor has adopted and applies corporate
governance guidelines. The Internal Controls are, or upon consummation of the
offering of the Notes will be, overseen by the Audit Committee (the “Audit
Committee”) of the Board in accordance with Exchange Rules in all material
respects. The Guarantor has not publicly disclosed or reported to the Audit
Committee or the Board, and within the next 90 days the Guarantor does not
reasonably expect to publicly disclose or report to the Audit Committee or the
Board, a significant deficiency, material weakness, change in Internal Controls
or fraud involving management or other employees who have a significant role in
Internal Controls (each, an “Internal Control Event”), any violation of,
or failure to comply with, the Securities Laws, or any matter which, if
determined adversely, would have a Material Adverse Effect; and
(r)
KPMG LLP, who have certified certain financial statements of the
Guarantor and its subsidiaries including the Company, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
2.
Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company,
at a purchase price of 99.249% of
the principal amount of the Notes, plus accrued interest, if any, from May
23, 2014 to the Time of Delivery hereunder, the principal amount of the Notes
set forth opposite the name of such Underwriter in Schedule A hereto.
3.
Upon the authorization by the Underwriters of the release of the
Notes, the several Underwriters propose to offer the Notes for sale upon the
terms and conditions set forth in the Registration Statement, Prospectus or the
General Disclosure Package.
4.
(a) The Notes to be purchased by each Underwriter hereunder will
be represented by one or more definitive global securities in book-entry form
which will be deposited by or on behalf of the Company with The Depository
Trust Company (“DTC”) or its designated custodian. The Company will
deliver the Notes to Credit Suisse Securities (USA) LLC, for the account of
each Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor in federal (same-day) funds by wire transfer to an
account designated by the Company for such purpose, by causing DTC to credit
the Notes to the account of Credit Suisse Securities (USA) LLC at DTC. The
Company will cause the certificates representing the Notes to be made available
to Credit Suisse Securities (USA) LLC for checking at least twenty‑four
hours prior to the Time of Delivery (as defined below) at the office of DTC or
its designated custodian (the “Designated Office”). The time and date
of such delivery and payment shall be approximately 10:00 a.m., New York City
time, on May 23, 2014 or such other time and date as Credit Suisse Securities
(USA) LLC and the Company may agree upon in writing. Such time and date are
herein called the “Time of Delivery”.
(b)
The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 8 hereof, including the
cross-receipt for the Notes and any additional documents requested by the
Underwriters pursuant to Section 8(i) hereof, will be delivered at the offices
of Shearman & Sterling LLP, 599 Lexington Avenue, New York, NY 10022 (the “Closing
Location”), and the Notes will be delivered at the Designated Office, all
at the Time of Delivery. A meeting will be held at the Closing Location at
approximately 5:00 p.m., New York City time, on the New York Business Day
next preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For purposes of this Section 4, “New York
Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
5.
Each of the Company and the Guarantor agrees with each of the
Underwriters:
(a)
To prepare each Statutory Prospectus (including the Prospectus)
in a form approved by the Underwriters and to file such Statutory Prospectus
(including the Prospectus) pursuant to Rule 424(b)(2) under the Act (or, if
applicable and consented to by the Representatives, subparagraph 424(b)(5)) not
later than the Commission’s close of business on the second business day
following the execution and delivery of this Agreement or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further amendment or
any supplement to the Registration Statement or Statutory Prospectus (including
the Prospectus) after the date of this Agreement and prior to the Time of
Delivery which shall be disapproved by the Underwriters promptly after
reasonable notice thereof; to advise the Underwriters promptly of such
amendment or supplement after such Time of Delivery and furnish the
Underwriters with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the Company
and the Guarantor with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Notes, and during such
same period to advise the Underwriters promptly after it receives notice
thereof, of the time when any amendment or supplement to the Registration
Statement or any Statutory Prospectus has been proposed or filed with the
Commission, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any prospectus relating to the Notes, of
the suspension of the qualification of the Notes for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or any Statutory Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of any
such order preventing or suspending the use of any prospectus relating to the
Notes or suspending any such qualification, to promptly use its best efforts to
obtain the withdrawal of such order. Each of the Company and the Guarantor has
complied and will comply with Rule 433;
(b)
Promptly from time to time to take such action as the
Underwriters may reasonably request to qualify the Notes for offering and sale
under the securities laws of such jurisdictions in the United States as the
Underwriters may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of the Notes, provided
that in connection therewith neither the Company nor the Guarantor shall be
required to qualify as a foreign corporation, to file a general consent to
service of process in any jurisdiction or to take any action that would subject
it to general taxation in any jurisdiction;
(c)
Prior to approximately 2:00 p.m., New York City time, on the
second business day next succeeding the date of this Agreement and from time to
time thereafter, to furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities in New York City as the Underwriters
may reasonably request, and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, if it is necessary at
any time to amend the Registration Statement or supplement the Prospectus to
comply with the Act or, if for any other reason it shall be necessary during
such same period to amend the Registration Statement or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange Act
or the Trust Indenture Act, to notify the Underwriters and, upon the request of
the Representatives and subject to the approval of the Representatives, to file
such document and to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as the Underwriters may from time to
time reasonably request of an amendment or supplement to the Prospectus which
will correct such statement or omission or an amendment which will effect such
compliance;
(d)
To make generally available to the securityholders of the Company
and Guarantor as soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company, the Guarantor
and their subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158, in which case this Section
5(d) shall not be construed to require the Company to file any report referred
to in Rule 158 prior to the time at which such report is otherwise due);
(e)
During the period beginning from the date hereof and continuing
to and including the later of the Time of Delivery and such earlier time as the
Underwriters may notify the Company, not to offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder, any securities of the
Company that are substantially similar to the Notes;
(f)
For so long as Notes are in global form, to furnish to the
holders thereof as soon as practicable after the end of each fiscal year an
annual report (including a balance sheet and statements of income,
shareholders’ equity and cash flows of the Company, the Guarantor and their
consolidated subsidiaries certified by independent public accountants) and, as
soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), consolidated summary financial information of
the Company, the Guarantor and their subsidiaries for such quarter in
reasonable detail; and to furnish to the holders of the Notes all other
documents specified in Section 7.04 of the Base Indenture, all in the manner so
specified;
(g)
During a period of three years from the effective date of the
Registration Statement, to furnish to the Underwriters copies of all reports or
other communications (financial or other) furnished to the stockholders of the
Guarantor generally, and to deliver to the Underwriters (i) as soon as they are
available, (A) copies of any reports and financial statements furnished to or
filed with the Commission or any national securities exchange on which the
Notes or any class of securities of the Company or the Guarantor is listed and
(B) the documents specified in Section 7.04 of the Base Indenture, as in effect
at the Time of Delivery, and (ii) such additional information concerning the
business and financial condition of the Company or the Guarantor as the
Underwriters may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company, the Guarantor and their subsidiaries are consolidated in reports
furnished to the Guarantor’s stockholders generally or to the Commission); provided
that any material nonpublic information received by the Underwriters will be
held in confidence and not used in violation of any applicable law; and provided
further that, for so long as the Guarantor is subject to the reporting
requirements of either Section 13 or Section 15(d) of the Exchange Act and is
timely filing reports with the Commission on its Electronic Data Gathering,
Analysis and Retrieval (EDGAR) system, neither the Company nor the Guarantor
shall be required to furnish such reports or statements to the Underwriters;
and
(h)
To use the net proceeds received by it from the sale of the Notes
pursuant to this Agreement in the manner specified in the Prospectus under the
caption “Use of Proceeds.”
6. (a) Each of the Company and the Guarantor represents and agrees
that, unless it obtains the prior consent of the Representatives, and each
Underwriter represents and agrees that, unless it obtains the prior consent of
the Company and the Representatives, it has not made and will not make any
offer relating to the Notes that would constitute an Issuer Free Writing Prospectus,
or that would otherwise constitute a “free writing prospectus,” as defined in
Rule 405, required to be filed with the Commission. Any such free writing
prospectus consented to by the Company and the Representatives is hereinafter
referred to as a “Permitted Free Writing Prospectus.” Each of the
Company and the Guarantor represents that it has treated and agrees that it
will treat each Permitted Free Writing Prospectus as an “issuer free writing
prospectus,” as defined in Rule 433, and has complied and will comply with the
requirements of Rules 164 and 433 applicable to any Permitted Free Writing
Prospectus, including timely filing where required with the Commission,
legending and record keeping.
(b)
The Company will prepare a final term sheet relating to the
Notes, containing only information that describes the final terms of the Notes
and otherwise in a form consented to by the Representatives, and will file such
final term sheet within the period required by Rule 433(d)(5)(ii) on or
following the date such final terms have been established for all classes of
the offering of the Notes. Any such final term sheet is an Issuer Free Writing
Prospectus and a Permitted Free Writing Prospectus for purposes of this
Agreement. The Company also consents to the use by any Underwriter of a free
writing prospectus that contains only (i)(x) information describing the
preliminary terms of the Notes or their offering or (y) information that
describes the final terms of the Notes or their offering and that is included in
the final term sheet of the Company contemplated in the first sentence of this
subsection or (ii) other information that is not “issuer information,” as
defined in Rule 433, it being understood that any such free writing prospectus
referred to in clause (i) or (ii) above shall not be an Issuer Free Writing
Prospectus for purposes of this Agreement.
7.
Each of the Company and the Guarantor covenants and agrees with
the several Underwriters that each of the Company and the Guarantor will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of
counsel and accountants of the Company and the Guarantor in connection with the
registration of the Notes under the Act, all other expenses in connection with
the preparation, printing and filing of the Registration Statement, any
preliminary prospectuses and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the Underwriters
and dealers, and for expenses incurred for preparing, printing and distributing
any Issuer Free Writing Prospectuses to investors or prospective investors;
(ii) the cost of producing any Agreement among Underwriters, this Agreement,
the Indenture, the Blue Sky Memorandum, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Notes; (iii) all expenses in connection with
the qualification of the Notes for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees and disbursements
of counsel for the Underwriters (not to exceed $5,000 in the aggregate) in
connection with such qualification and in connection with the Blue Sky
Memorandum; (iv) any fees charged by securities rating services for rating the
Notes; (v) the filing fees incident to, and fees and the disbursements of
counsel for the Underwriters in connection with, any required review by the
Financial Industry Regulatory Authority of the terms of the sale of the Notes;
(vi) the cost of preparing the Notes; (vii) the fees and expenses of the
Trustee and any agent of the Trustee and the fees and disbursements of counsel
for the Trustee in connection with the Indenture and the Notes; and (viii) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section.
It is understood, however, that, except as provided in this Section, and
Sections 9 and 12 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Notes by them, and any advertising expenses connected with any offers
they may make.
8.
The obligations of the Underwriters to purchase the Notes
hereunder shall be subject in the sole discretion of the Underwriters to the
condition that all representations and warranties and other statements of the
Company and the Guarantor herein are, at and as of the Time of Delivery, true
and correct, the condition that the Company and the Guarantor shall have
performed all of their obligations hereunder theretofore to be performed, and
the following additional conditions:
(a)
Each Statutory Prospectus (including the Prospectus) shall have
been filed with the Commission pursuant to Rule 424(b) within the applicable
time period prescribed for such filing by the rules and regulations under the
Act and in accordance with Section 5(a) hereof and the Indenture shall have
been qualified under the Trust Indenture Act; no stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission and no notice pursuant to Rule 401(g)(2) shall have been
received; and all requests for additional information on the part of the
Commission shall have been complied with to the reasonable satisfaction of the
Underwriters;
(b)
Shearman & Sterling LLP, counsel for the Underwriters, shall
have furnished to the Underwriters a written opinion, dated the Time of
Delivery, in form and substance reasonably satisfactory to the Underwriters;
(c)
The General Counsel for the Guarantor and President of the
Company shall have furnished to the Underwriters his written opinion, dated the
Time of Delivery, in substantially the form attached hereto as Annex I;
(d)
Jones Day, counsel for the Company, shall have furnished to the
Underwriters a written opinion, dated the Time of Delivery, in substantially
the form attached hereto as Annex II;
(e)
KPMG LLP shall have furnished to the Underwriters letters, dated,
respectively, the date hereof and the Time of Delivery confirming that they are
a registered public accounting firm and independent public accountants within
the meaning of the Securities Laws in form and substance satisfactory to the
Underwriters (except that, in any letter dated the Time of Delivery, the
specified date referred to in Annex III hereto shall be a date no more than
three business days prior to the Time of Delivery);
(f)
(i) Since the date of the latest audited financial statements
included or incorporated by reference in the Registration Statement, Prospectus
or the General Disclosure Package except as set forth or contemplated in the
Registration Statement, Prospectus or the General Disclosure Package, neither
the Company, the Guarantor nor any of their subsidiaries, taken as a whole,
shall have sustained any loss or interference with their business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree, and
(ii) since the respective dates as of which information is given in the
Registration Statement, Prospectus or the General Disclosure Package, there
shall not have been any change or any development involving a prospective
change in the capital stock or long-term debt of the Company, the Guarantor or
any of their subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial position,
shareholders’ equity or results of operations of the Company, the Guarantor and
their subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Registration Statement, Prospectus or the General
Disclosure Package, the effect of which, in any such case described in clause
(i) or (ii), is in the judgment of the Representatives so material and adverse
as to make it impracticable or inadvisable to proceed with the public offering
or the delivery of the Notes on the terms and in the manner contemplated in the
Registration Statement, Prospectus or the General Disclosure Package;
(g)
On or after the date hereof, (i) no downgrading shall have
occurred in the rating accorded to debt securities of the Company or the
Guarantor by any “nationally recognized statistical rating organization”, as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating
of any of the debt securities of the Company or the Guarantor;
(h)
On or after the date hereof, there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension or
material limitation in trading in the securities of the Company or the
Guarantor on the New York Stock Exchange; (iii) a general moratorium on
commercial banking activities declared by either Federal or New York State
authorities or a major disruption in commercial banking or securities
settlement or clearance services; or (iv) the outbreak or escalation of
hostilities or any calamity or crisis involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in this clause (iv) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Notes on the terms and in the manner
contemplated in the Prospectus, General Disclosure Package or this Agreement;
or (v) the occurrence of any material adverse change in the existing financial,
political or economic conditions in the United States or elsewhere which, in the
judgment of the Representatives, would materially and adversely affect the
financial markets or the market for the Notes and other debt securities; and
(i)
Each of the Company and the Guarantor shall have furnished or
caused to be furnished to the Underwriters at the Time of Delivery certificates
of officers of the Company and the Guarantor satisfactory to the Underwriters
as to the accuracy of the representations and warranties of the Company and the
Guarantor herein at and as of such Time of Delivery, as to the performance by
the Company and the Guarantor of all of their obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set forth in
subsections (a) and (f) of this Section and as to such other matters as the
Underwriters may reasonably request.
9. (a) Each of the Company and the Guarantor jointly and severally
will indemnify and hold harmless each Underwriter, its partners, members,
directors, officers, employees, agents, affiliates and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act (each, an “Indemnified Party”), against
any losses, claims, damages or liabilities, joint or several, to which such
Indemnified Party may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement at any time, any
Statutory Prospectus as of any time, the Prospectus or any Issuer Free Writing
Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any such action or claim as such expenses are incurred; provided,
however, that neither the Company nor the Guarantor shall be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Registration Statement at any time,
any Statutory Prospectus as of any time, the Prospectus or any Issuer Free
Writing Prospectus, or any amendment or supplement thereto in reliance upon and
in conformity with written information furnished to the Company or to the
Guarantor by any Underwriter through the Representatives expressly for use
therein.
(b)
Each Underwriter will indemnify and hold harmless the Company and
the Guarantor, each of their directors and each of their officers who signs the
Registration Statement and each person, if any, who controls the Company or
Guarantor within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act (each, an “Underwriter Indemnified Party”) against any
losses, claims, damages or liabilities to which such Underwriter Indemnified
Party may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement at any time, any Statutory
Prospectus as of any time, the Prospectus or any Issuer Free Writing
Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in any Registration Statement at any time, any Statutory Prospectus as
of any time, the Prospectus or any Issuer Free Writing Prospectus, or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company or the Guarantor by such Underwriter
through the Representatives expressly for use therein; and will reimburse the
Company and the Guarantor for any legal or other expenses reasonably incurred
by the Underwriter Indemnified Party in connection with investigating or
defending any such action or claim as such expenses are incurred, it being
understood and agreed that the only such information furnished by an
Underwriter through the Representatives consists of the concession and
reallowance figures appearing in the third paragraph under the caption
“Underwriting” of the Prospectus and the eighth and ninth paragraphs under the
caption “Underwriting” of the Prospectus concerning stabilizing transactions.
(c)
Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d)
If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under subsection
(a) or (b) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Guarantor on the one hand and the Underwriters
on the other from the offering of the Notes. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Guarantor on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Guarantor on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover page of the Prospectus.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information supplied by
the Company or the Guarantor on the one hand or the Underwriters on the other
and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Guarantor and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Notes underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters’
obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e)
The obligations of the Company and the Guarantor under this
Section 9 shall be in addition to any liability which the Company or the
Guarantor may otherwise have and shall extend, upon the same terms and conditions,
to each person, if any, who controls any Underwriter within the meaning of the
Act; and the obligations of the Underwriters under this Section 9 shall be in
addition to any liability which the respective Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Company or the Guarantor (including any person who, with his or
her consent, is named in the Registration Statement as about to become a
director of the Company or the Guarantor) and to each person, if any, who
controls the Company within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to
purchase any of the Notes which it has agreed to purchase hereunder, the
Underwriters may in their discretion arrange for the Underwriters or another
party or other parties to purchase such Notes on the terms contained herein.
If within thirty-six hours after such default by any Underwriter the
Underwriters do not arrange for the purchase of such Notes, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Underwriters to
purchase such Notes on such terms. In the event that, within the respective prescribed
periods, the Underwriters notify the Company that they have so arranged for the
purchase of such Notes or the Company notifies the Underwriters that it has so
arranged for the purchase of such Notes, as the case may be, the Underwriters
or the Company shall have the right to postpone the Time of Delivery for a
period of not more than seven days in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement, the Prospectus, any Statutory Prospectus, any
prospectus wrapper and any Issuer Free Writing Prospectus which in the opinion of
the Underwriters may thereby be made necessary. The term “Underwriter”
as used in this Agreement shall include any person substituted under this
Section with like effect as if such person had originally been a party to this
Agreement with respect to such Notes.
(b)
If, after giving effect to any arrangements for the purchase of
the Notes of a defaulting Underwriter or Underwriters by the Underwriters and
the Company as provided in subsection (a) above, the aggregate principal amount
of such Notes which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all such Notes as set forth in Schedule A hereto,
then the Company shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of such Notes which such
Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of such Notes which such Underwriter agreed to purchase
hereunder) of such Notes of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c)
If, after giving effect to any arrangements for the purchase of
the Notes of a defaulting Underwriter or Underwriters by the Underwriters and
the Company as provided in subsection (a) above, the aggregate principal amount
of such Notes which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of all such Notes as set forth in Schedule A hereto, or if the
Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase such Notes of a defaulting
Underwriter or Underwriters, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the Company,
except for the expenses to be borne by the Company and the Underwriters as
provided in Section 7 hereof and the indemnity and contribution agreements in
Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
11.
The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Guarantor and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, the Company, or any officer or director or controlling person
of the Company, or the Guarantor, or any officer or director or controlling
person of the Guarantor, and shall survive delivery of and payment for the
Notes.
12.
If this Agreement shall be terminated pursuant to Section 10
hereof, neither the Company nor the Guarantor shall then be under any liability
to any Underwriter except as provided in Sections 7 and 9 hereof; but, if for
any other reason, the Notes are not delivered by or on behalf of the Company as
provided herein, the Company and the Guarantor will reimburse the Underwriters
for all out-of-pocket expenses, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Notes, but the Company and the Guarantor
shall then be under no further liability to any Underwriter except as provided
in Sections 7 and 9 hereof.
13.
All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriters shall be delivered or sent by mail or
facsimile transmission to the Underwriters in care of each of the following:
Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, NY 10010-3629
Attention: LCD-IBD
Fax: 212-322-2936
J.P. Morgan Securities LLC
383 Madison Avenue
New York, NY 10179
Attention: Investment Grade Syndicate Desk
Fax: 212-834-6081
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
50 Rockefeller Plaza
NY1-050-12-01
New York, NY 10020
Attention: High Grade Transaction Management/Legal
Fax: 212-901-7867
and if to the Company shall be delivered or sent by
mail or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: Chief Financial Officer and Attention:
Secretary or by facsimile to 513-579-7354; provided, however,
that any notice to an Underwriter pursuant to Section 9(c) hereof shall be
delivered or sent by mail or facsimile transmission to such Underwriter at its
address set forth in its Underwriters’ Questionnaire, or telex constituting
such Questionnaire, which address will be supplied to the Company by the
Underwriters upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
14.
This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, the Guarantor and, to the extent
provided in Sections 9 and 11 hereof, the officers and directors of the Company
and the Guarantor and each person who controls the Company, the Guarantor or
any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Notes from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
15.
Time shall be of the essence of this Agreement. As used herein,
the term “business day” shall mean any day when the Commission’s office
in Washington, D.C. is open for business.
16.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
17.
This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one
and the same instrument.
18.
Each of the Company and the Guarantor acknowledges and agrees
that:
(a)
The Underwriters have been retained solely to act as underwriters
in connection with the sale of the Notes and that no fiduciary, advisory or
agency relationship between the Company and the Underwriters nor between the
Guarantor and the Underwriters has been created in respect of any of the
transactions contemplated by this Agreement, irrespective of whether the
Underwriters have advised or is advising the Company or the Guarantor on other
matters;
(b)
The price of the Notes set forth in this Agreement was
established by the Company following discussions and arms-length negotiations
with the Representatives and the Company is capable of evaluating and
understanding and understands and accepts the terms, risks and conditions of
the transactions contemplated by this Agreement;
(c)
The Company and the Guarantor have been advised that the
Underwriters and their affiliates are engaged in a broad range of transactions
which may involve interests that differ from those of the Company and the
Guarantor and that the Underwriters have no obligation to disclose such
interests and transactions to the Company and the Guarantor by virtue of any
fiduciary, advisory or agency relationship; and
(d)
The Company and the Guarantor waive, to the fullest extent
permitted by law, any claims they may have against the Underwriters for breach
of fiduciary duty or alleged breach of fiduciary duty and agree that the
Underwriters shall have no liability (whether direct or indirect) to the
Company or the Guarantor in respect of such a fiduciary duty claim or to any
person asserting a fiduciary duty claim on behalf of or in right of the Company
or the Guarantor, including stockholders, employees or creditors of the Company
or the Guarantor.
[SIGNATURE
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