STARWOOD HOTELS &
RESORTS WORLDWIDE, INC.
$500,000,000 7.875%
Senior Notes due 2014
Underwriting Agreement
April 30, 2009
Banc of America Securities LLC
One Bryant Park
New York, New York 10036
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
As Representatives of the
several Underwriters listed
in Schedule 1 hereto
Ladies and Gentlemen:
Starwood Hotels & Resorts
Worldwide, Inc., a Maryland corporation (the
“Company”), proposes to issue and sell to the several
Underwriters listed in Schedule 1 hereto (the
“Underwriters”), for whom you are acting as
representatives (the “Representatives”), $500,000,000
in principal amount of its 7.875% Senior Notes due 2014 (the
“Securities”). The Securities will be issued pursuant
to an Indenture, dated as of September 13, 2007 (the
“Base Indenture”), as supplemented by Supplemental
Indenture No. 1, dated as of September 13, 2007, between
the Company and U.S. Bank National Association, as trustee (the
“Trustee”), Supplemental Indenture No. 2, dated as
of May 23, 2008, between the Company and the Trustee, and as
further supplemented by Supplemental Indenture No. 3, to be
dated as of May 7, 2009 (the “Supplemental
Indenture”), between the Company and the Trustee. The
Base Indenture, as supplemented by the Supplemental Indenture, is
referred to herein as the “Indenture.”
The Company hereby confirms its
engagement of Goldman, Sachs & Co. (“Goldman
Sachs”) as, and Goldman Sachs hereby confirms its agreement
with the Company to render services as, a “qualified
independent underwriter,” within the meaning of Section
(b)(15) of Rule 2720 of the Financial Industry Regulatory
Authority, formerly National Association of Securities Dealers,
Inc. (“FINRA”), with respect to the offering and sale
of the Securities. Goldman Sachs, solely in its capacity as the
qualified independent underwriter and not otherwise, is referred to
herein as the “QIU.”
The Company hereby confirms its
agreement with the several Underwriters concerning the purchase and
sale of the Securities, as follows:
1. Registration
Statement . The Company has prepared and filed with the
Securities and Exchange Commission (the “Commission”)
under the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the
“Securities Act”), a registration statement on Form S-3
(File No. 333-145894), including a prospectus, relating, among
other things, to the Securities. Such registration statement,
including the information, if any, deemed pursuant to
Rule 430A, 430B or 430C under the Securities Act to be part of
the registration statement at the time of its effectiveness
(“Rule 430 Information”), is referred to herein as
the “Registration Statement”; and as used herein, the
term “Preliminary Prospectus” means each prospectus
used in connection with the offering of the Securities that omits
Rule 430 Information, and the term “Prospectus”
means the final prospectus and any final prospectus supplement(s)
in the form first used (or made available upon request of
purchasers pursuant to Rule 173 under the Securities Act) in
connection with confirmation of sales of the Securities. If the
Company has filed an abbreviated registration statement pursuant to
Rule 462(b) under the Securities Act (the “Rule 462
Registration Statement”), then any reference herein to the
term “Registration Statement” shall be deemed to
include such Rule 462 Registration Statement. Any reference in
this Agreement to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act, as of the
effective date of the Registration Statement or the date of such
Preliminary Prospectus or the Prospectus, as the case may be and
any reference to “amend,” “amendment” or
“supplement” with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after such date
under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder (collectively,
the “Exchange Act”) that are deemed to be incorporated
by reference therein. Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Registration
Statement and the Prospectus.
At or prior to the time when sales of
the Securities were first made (the “Time of Sale”),
the Company had prepared the following information (collectively
with the information referred to in the next succeeding clause, the
“Time of Sale Information”): a Preliminary Prospectus
dated April 30, 2009 and each “free-writing prospectus”
(as defined pursuant to Rule 405 under the Securities Act)
listed on Annex D hereto as constituting part of the Time of
Sale Information.
2. Purchase of the
Securities by the Underwriters . (a) (a) The Company
agrees to issue and sell the Securities to the several Underwriters
as provided in this Agreement, and each Underwriter, on the basis
of the representations, warranties and agreements set forth herein
and subject to the conditions set forth herein, agrees, severally
and not jointly, to purchase from the Company the respective
principal amount of the Securities set forth opposite such
Underwriter’s name in Schedule 1 hereto at a price equal
to 94.91% of the principal amount thereof plus accrued interest, if
any, from May 7, 2009 to the Closing Date (as defined below).
The Company will not be obligated to deliver any of the Securities
except upon payment for all the Securities to be purchased as
provided herein.
(b) The Company understands
that the Underwriters intend to make a public offering of the
Securities as soon after the effectiveness of this Agreement as in
the judgment of the Representatives is advisable, and initially to
offer the Securities on the terms set forth in the Prospectus. The
Company acknowledges and agrees that the Underwriters may offer and
sell Securities to or through any affiliate of an Underwriter and
that any such affiliate may offer and sell Securities purchased by
it to or through any Underwriter.
(c) Payment for and delivery of
the Securities will be made at the offices of Latham & Watkins
LLP, 885 Third Avenue, New York, New York 10022 at 10:00 A.M.,
New York City time, on May 7, 2009, or at such other time or
place on the same or such other date, not later than the fifth
business day thereafter, as the Representatives and the Company may
agree upon in writing. The time and date of such payment and
delivery is referred to herein as the “Closing
Date.”
(d) Payment for the Securities
shall be made by wire transfer in immediately available funds to
the account(s) specified by the Company to the Representatives
against delivery to the nominee of The Depository Trust Company,
for the account of the Underwriters, of one or more global notes
representing the Securities (collectively, the “Global
Note”), with any transfer taxes payable in connection with
the sale of the Securities duly paid by the Company. The Global
Note will be made available for inspection by the Representatives
not later than 1:00 P.M., New York City time, on the business day
prior to the Closing Date.
(e) The Company acknowledges
and agrees that the Underwriters are acting solely in the capacity
of an arm’s length contractual counterparty to the Company
with respect to the offering of Securities contemplated hereby
(including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person. Additionally, neither of
the Representatives nor any other Underwriter is advising the
Company or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. The Company
shall consult with its own advisors concerning such matters and
shall be responsible for making its own independent investigation
and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the
Company with respect thereto. Any review by the Underwriters of the
Company, the transactions contemplated hereby or other matters
relating to such transactions will be performed solely for the
benefit of the Underwriters and shall not be on behalf of the
Company.
3. Representations and
Warranties of the Company . The Company represents and warrants
to each Underwriter, as of the date hereof, that:
(a) Preliminary
Prospectus. No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, complied in
all material respects with the Securities Act and did not contain
any untrue statement of a material fact or omit to state a material
fact (other than Rule 430 Information) required to be stated
therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in
any Preliminary Prospectus.
(b) Time of Sale
Information . The Time of Sale Information, at the Time of Sale
did not, and at the Closing Date will not, contain any untrue
statement of a material fact or 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;
provided that the Company makes no representation and
warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in such Time of Sale
Information. No statement of material fact included in the
Prospectus has been omitted from the Time of Sale Information and
no statement of material fact included in the Time of Sale
Information that is required to be included in the Prospectus has
been omitted therefrom.
(c) Issuer Free Writing
Prospectus. The Company (including its agents and
representatives, other than the Underwriters in their capacity as
such) has not prepared, made, used, authorized, approved or
referred to and will not prepare, make, use, authorize, approve or
refer to any “written communication” (as defined in
Rule 405 under the Securities Act) that constitutes an offer
to sell or solicitation of an offer to buy the Securities (each
such communication by the Company or its agents and representatives
(other than a communication referred to in clauses (i),
(ii) and (iii) below) an “Issuer Free Writing
Prospectus”) other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of
the Securities Act or Rule 134 under the Securities Act,
(ii) the Preliminary Prospectus, (iii) the Prospectus,
(iv) the documents listed on Annex D hereto as constituting
the Time of Sale Information and (v) any electronic road show
or other written communications, in each case approved in writing
in advance by the Representatives (such approval not to be
unreasonably withheld). Each such Issuer Free Writing Prospectus
complied in all material respects with the Securities Act, has been
or will be (within the time period specified in Rule 433)
filed in accordance with the Securities Act (to the extent required
thereby) and, when taken together with the Preliminary Prospectus
accompanying, or delivered prior to delivery of, such Issuer Free
Writing Prospectus, did not, and at the Closing Date will not,
contain any untrue statement of a material fact or 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; provided that the Company makes no
representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in any Issuer Free
Writing Prospectus.
(d) Registration Statement
and Prospectus. The Registration Statement is an
“automatic shelf registration statement” as defined
under Rule 405 of the Securities Act that has been filed with
the Commission not earlier than three years prior to the date
hereof; and no notice of objection of the Commission to the use of
such registration statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Securities Act has been
received by the Company. No order suspending the effectiveness of
the Registration Statement has been issued by the Commission and no
proceeding for that purpose or pursuant to Section 8A of the
Securities Act against the Company or related to the offering has
been initiated or overtly threatened by the Commission; as of the
applicable effective date of the Registration Statement and any
amendment thereto, the Registration Statement complied and will
comply in all material respects with the Securities Act and the
Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (collectively, the
“Trust Indenture Act”), and did not and will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order
to make the statements therein not misleading; and as of the date
of the Prospectus and any amendment or supplement thereto and as of
the Closing Date, the Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company
makes no representation and warranty with respect to (i) that
part of the Registration Statement that constitutes the Statement
of Eligibility and Qualification (Form T-1) of the Trustee under
the Trust Indenture Act or (ii) any statements or omissions
made in reliance upon and in conformity with information relating
to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use in the
Registration Statement and the Prospectus and any amendment or
supplement thereto.
(e) Incorporated
Documents. The documents incorporated by reference in the
Registration Statement, the Prospectus and the Time of Sale
Information, when they were filed with the Commission conformed in
all material respects to the requirements of the Exchange Act, of
1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Exchange Act”) and none
of such documents contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(f) Financial
Statements. The financial statements and the related notes
thereto included or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus comply
in all material respects with the applicable requirements of the
Securities Act, and present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates indicated
and the results of their operations and the changes in their cash
flows for the periods specified; such financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
covered thereby, and the supporting schedules included or
incorporated by reference in the Registration Statement present
fairly the information required to be stated therein; and the other
financial information included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the
Prospectus has been derived from the accounting records of the
Company and its subsidiaries and presents fairly the information
shown thereby.
(g) No Material Adverse
Change. Since the date of the most recent financial statements
of the Company included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the
Prospectus, (i) there has not been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries,
or any dividend or distribution of any kind declared, set aside for
payment, paid or made by the Company on any class of capital stock,
or any change, or any development involving a prospective change,
in or affecting the general affairs, management, financial
position, stockholders’ equity or results of operations of
the Company and its subsidiaries that would, individually or in the
aggregate, have a Material Adverse Effect (as defined below);
(ii) neither the Company nor any of its subsidiaries has
entered into any transaction or agreement that is material to the
Company and its subsidiaries taken as a whole or incurred any
liability or obligation, direct or contingent, that is material to
the Company and its subsidiaries taken as a whole; and
(iii) neither the Company nor any of its subsidiaries has
sustained any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or any action,
order or decree of any court or arbitrator or governmental or
regulatory authority, except in each case as otherwise disclosed in
the Registration Statement, the Time of Sale Information and the
Prospectus, that would, individually or in the aggregate,
(x) have a Material Adverse Effect or (y) materially interfere
with, adversely affect or question the validity of (A) the
execution and delivery of the Indenture or the issuance of the
Securities or the consummation of this Agreement and the
transactions contemplated hereby or (B) the performance by the
Company and each of its subsidiaries of their respective agreements
and obligations under the Transaction Documents (as defined below)
or of the transactions contemplated thereby. As used herein,
“Material Adverse Effect” shall mean any effect or
group of related or unrelated effects that would be reasonably
expected, individually or in the aggregate, to result in a material
adverse effect on the assets, properties, business, results of
operations or financial condition of the Company and its
subsidiaries, taken as a whole.
(h) Organization and Good
Standing. The Company and each of its subsidiaries have been
duly organized and are validly existing and in good standing under
the laws of their respective jurisdictions of organization, are
duly qualified to do business and are in good standing in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to
own or hold their respective properties and to conduct the
businesses in which they are engaged, except where the failure to
be so qualified, in good standing or have such power or authority
would not, individually or in the aggregate, have a Material
Adverse Effect.
(i) Capitalization. The
Company has an authorized capitalization as set forth in the
Registration Statement, the Time of Sale Information and the
Prospectus under the heading “Capitalization” and all
the outstanding shares of capital stock or other equity interests
of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable (except as otherwise described in
the Registration Statement, the Time of Sale Information and the
Prospectus) and are owned directly or indirectly by the Company,
free and clear of any lien, charge, encumbrance, security interest,
restriction on voting or transfer or any other claim of any third
party.
(j) Due Authorization.
The Company has full right, power and authority to execute and
deliver this Agreement, the Securities and the Indenture
(collectively, the “Transaction Documents”) and to
perform its obligations hereunder and thereunder; and all action
required to be taken for the due and proper authorization,
execution and delivery of each of the Transaction Documents and the
consummation of the transactions contemplated thereby has been duly
and validly taken.
(k) The Indenture.
(i) The Base Indenture has been
and the Supplemental Indenture will have been duly authorized,
executed and delivered by the Company and upon effectiveness of the
Registration Statement was or will have been duly qualified under
the Trust Indenture Act; and
(ii) The Base Indenture
constitutes, and the Supplemental Indenture will constitute, when
duly executed and delivered in accordance with its terms by each of
the parties thereto, a valid and legally binding agreement of the
Company enforceable against the Company in accordance with its
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally or
by equitable principles relating to enforceability (collectively,
the “Enforceability Exceptions”).
(l) The Securities .
The Securities have been duly authorized by the Company and, when
duly executed, authenticated, issued and delivered as provided in
the Indenture and paid for as provided herein, will be duly and
validly issued and outstanding and will constitute valid and
legally binding obligations of the Company enforceable against the
Company in accordance with their terms, subject to the
Enforceability Exceptions, and will be entitled to the benefits of
the Indenture.
(m) Underwriting
Agreement . This Agreement has been duly authorized, executed
and delivered by the Company.
(n) Descriptions of the
Transaction Documents . Each Transaction Document conforms in
all material respects to the description thereof contained in the
Registration Statement, the Time of Sale Information and the
Prospectus.
(o) No Violation or
Default. Neither the Company nor any of its subsidiaries is
(i) in violation of its charter or bylaws or similar
organizational documents; (ii) in default, and no event has
occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of
any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of
its subsidiaries is subject; or (iii) in violation of any law
or statute or any judgment, order, rule or regulation of any court
or arbitrator or governmental or regulatory authority, except, in
the case of clause (i) solely as it relates to subsidiaries of
the Company and clauses (ii) and (iii) above, for any
such default or violation that would not, individually or in the
aggregate, have a Material Adverse Effect.
(p) No Conflicts. The
execution, delivery and performance by the Company of each of the
Transaction Documents, the issuance and sale of the Securities and
compliance by the Company with the terms thereof and the
consummation of the transactions contemplated by the Transaction
Documents will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, (ii) result in any violation of the provisions of the
charter or by-laws of the Company, (iii) result in any
violation of the provisions of the charter or by-laws or similar
organizational documents of the Company’s subsidiaries or
(iv) result in the violation of any law or statute or any
judgment, order, rule or regulation of any court or arbitrator
having jurisdiction over the Company or any of its subsidiaries or
governmental or regulatory authority, except, in the case of
clauses (i), (iii) and (iv) above, for any such
conflict, breach, violation or default that would not, individually
or in the aggregate, have a Material Adverse Effect.
(q) No Consents
Required . No consent, approval, authorization, order,
registration or qualification (collectively,
“Consents”) of or with any court or arbitrator or
governmental or regulatory authority is required for the execution,
delivery and performance by the Company of each of the Transaction
Documents, the issuance and sale of the Securities and compliance
by the Company with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents, except for
the registration of the Securities under the Securities Act, the
qualification of the Indenture under the Trust Indenture Act, such
Consents as may be required under applicable state securities laws
in connection with the purchase and distribution of the Securities
by the Underwriters and such Consents which the failure to obtain
or possess would not, individually or in the aggregate, have a
Material Adverse Effect.
(r) Legal Proceedings.
Except as described in the Registration Statement, the Time of Sale
Information and the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property or assets of the Company or any
of its subsidiaries is subject that are likely to be determined
adversely to the Company or any of its subsidiaries and if so
determined would have a Material Adverse Effect, and to the best of
the Company’s knowledge, no such proceedings are overtly
threatened or contemplated by governmental authorities or
threatened by others; and (i) there are no current or pending
legal, governmental or regulatory actions, suits or proceedings
that are required under the Securities Act to be described in the
Registration Statement or the Prospectus that are not so described
in the Registration Statement, the Time of Sale Information and the
Prospectus and (ii) there are no statutes, regulations,
contracts or other documents that are required under the Securities
Act to be filed as exhibits to the Registration Statement or
described in the Registration Statement and the Prospectus that are
not so filed as exhibits to the Registration Statement or described
in the Registration Statement, the Time of Sale Information and the
Prospectus.
(s) Independent
Accountants. Ernst & Young LLP, who have certified certain
financial statements of the Company and its subsidiaries, are an
independent registered public accounting firm with respect to the
Company and its subsidiaries within the applicable rules and
regulations adopted by the Commission and the Public Company
Accounting Oversight Board (United States) and as required by the
Securities Act.
(t) Title to Real and
Personal Property. The Company and each of its subsidiaries
have good and marketable title in fee simple to all real property
and good and marketable title to all personal property owned by
them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Registration Statement,
the Time of Sale Information and the Prospectus or such as would
not, individually or in the aggregate, have a Material Adverse
Effect; and all real property and buildings held under lease by the
Company and its 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.
(u) Title to Intellectual
Property. The Company and its subsidiaries own or possess
adequate rights to use all patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service mark registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures)
necessary for the conduct of their respective businesses, except
where failure to own or possess such rights would not, individually
or aggregate, have a Material Adverse Effect; and the conduct of
their respective businesses will not conflict with, and neither the
Company nor any of its subsidiaries have received any notice of any
claim of conflict with, any such rights of others, except as would
not, individually or in the aggregate, have a Material Adverse
Effect.
(v) No Undisclosed
Relationships. To the Company’s best knowledge, no
relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries, on the one hand, and the
directors, officers, stockholders, customers or suppliers of the
Company or any of its subsidiaries, on the other, that is required
by the Securities Act to be described in the Registration Statement
and the Prospectus and that is not so described in such documents
and in the Time of Sale Information.
(w) Investment Company
Act. The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Registration Statement, the
Time of Sale Information and the Prospectus, will not be required
to register as an “investment company” within the
meaning of the Investment Company Act of 1940, as amended, and the
rules and regulations of the Commission thereunder (collectively,
“Investment Company Act”).
(x) Taxes. The Company
and its subsidiaries have paid all federal, state, local and
foreign taxes and filed all tax returns required to be paid or
filed through the date hereof, except as would not, individually or
in the aggregate, have a Material Adverse Effect; and except as
otherwise disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus, there is no tax deficiency that has
been, or could reasonably be expected to be, asserted against the
Company or any of its subsidiaries or any of their respective
properties or assets that would, individually or in the aggregate,
have a Material Adverse Effect.
(y) Licenses and
Permits. The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal,
state, local or foreign governmental or regulatory authorities that
are necessary for the ownership or lease of their respective
properties or the conduct of their respective businesses as
described in the Registration Statement, the Time of Sale
Information and the Prospectus, except where the failure to possess
or make the same would not, individually or in the aggregate, have
a Material Adverse Effect.
(z) No Labor Disputes.
No labor disturbance by or dispute with employees of the Company or
any of its subsidiaries exists or, to the best knowledge of the
Company, is imminent, except as would not, individually or in the
aggregate, have a Material Adverse Effect.
(aa) Compliance With
Environmental Laws. Except as otherwise set forth in the
Registration Statement, the Time of Sale Information and the
Prospectus, to the knowledge of the Company, (a) the Company
and its subsidiaries are in compliance with all applicable existing
federal, state and foreign laws and regulations relating to
protection of human health or the environment or imposing liability
or standards of conduct concerning any Hazardous Material
(collectively, “ Environmental Laws ”), except
for such instances of noncompliance which in the aggregate would
not result in a Material Adverse Effect and (b) neither the
Company nor any of its subsidiaries has any liability under any
Environmental Law that in the aggregate would have a Material
Adverse Effect. The term “Hazardous Material” means
(i) any “hazardous substance” as defined by the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, (ii) any “hazardous
waste” as defined by the Resource Conservation and Recovery
Act, as amended, (iii) any petroleum or petroleum product,
(iv) any polychlorinated biphenyl and (v) any pollutant
or contaminant or hazardous, dangerous or toxic chemical, material,
waste or substance regulated under or within the meaning of any
Environmental Law.
(bb) Compliance With
ERISA. Except as otherwise set forth i
