8.000% Senior Notes due
2016
$1,000,000,000
8.000% Senior Notes due 2016
Credit Suisse
Securities (USA) LLC
Banc of America Securities LLC
Citigroup Global Markets Inc.
RBS Securities Inc.
as
Representatives of the several Underwriters
c/o Credit
Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010-3629
SUPERVALU INC., a
Delaware corporation (the “Company”), confirms its
agreement with Credit Suisse Securities (USA) LLC
(“Credit Suisse”), Banc of America Securities LLC
(“Banc of America”), Citigroup Global Markets Inc.
(“Citi”) and RBS Securities Inc. (“RBS”)
(each, a “Representative” and together, the
“Representatives”), as representatives of the several
underwriters named in Schedule A hereto (collectively, the
“Underwriters,” which term shall also include any
underwriter substituted as hereinafter provided in Section 10
hereof) with respect to the issue and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of
the respective principal amounts set forth in said Schedule A
of $1,000,000,000 aggregate principal amount of the Company’s
8.000% Senior Notes due 2016 (the “Securities”). The
Securities are to be issued pursuant to an indenture dated as of
July 1, 1987, as supplemented by the First Supplemental
Indenture dated as of August 1, 1990, the Second Supplemental
Indenture dated as of October 1, 1992, the Third Supplemental
Indenture dated as of September 1, 1995, the Fourth
Supplemental Indenture dated as of August 4, 1999 and the
Fifth Supplemental Indenture dated as of September 17, 1999
(as so supplemented, the “Indenture”) between the
Company and Deutsche Bank Trust Company, formerly known as Bankers
Trust Company, as trustee (the “Trustee”). Certain
terms of the Securities will be established pursuant to a Board
Resolution (as defined in the Indenture) adopted by the Company
pursuant to Section 301 of the Indenture and set forth in an
Officers’ Certificate (as defined in the
Indenture).
The Company
understands that the Underwriters propose to make a public offering
of the Securities as soon as the Representatives deem advisable
after this Agreement has been executed and delivered.
The Company has
filed with the Securities and Exchange Commission (the
“Commission”) an automatic shelf registration statement
on Form S-3 (No. 333-158902), including the related
preliminary prospectus, which registration statement became
effective upon filing under Rule 462(e) of the rules and
regulations of the Commission (the “1933 Act
Regulations”) under the Securities Act of 1933, as amended
(the “1933 Act”). Such registration statement covers
the registration of the Securities under the
1933 Act.
Promptly after execution and delivery of this Agreement, the
Company will prepare and file a prospectus in accordance with the
provisions of Rule 430B (“Rule 430B”) of the
1933 Act Regulations and paragraph (b) of Rule 424
(“Rule 424(b)”) of the 1933 Act Regulations. Any
information included in such prospectus that was omitted from such
registration statement at the time it became effective but that is
deemed to be part of and included in such registration statement
pursuant to Rule 430B is referred to as “Rule 430B
Information.” Each prospectus used in connection with the
offering of the Securities that omitted Rule 430B Information
is herein called a “preliminary prospectus.” Such
registration statement, at any given time, including the amendments
thereto to such time, the exhibits and any schedules thereto at
such time, the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act at such time and the
documents otherwise deemed to be a part thereof or included therein
by 1933 Act Regulations, is herein called the “Registration
Statement.” The Registration Statement at the time it
originally became effective is herein called the “Original
Registration Statement.” The final prospectus in the form
first furnished to the Underwriters for use in connection with the
offering of the Securities, including the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
1933 Act at the time of the execution of this Agreement and any
preliminary prospectuses that form a part thereof, is herein called
the “Prospectus.” For purposes of this Agreement, all
references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to any of
the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system (“EDGAR”).
All references in
this Agreement to financial statements and schedules and other
information which is “contained,”
“included” or “stated” in the Registration
Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which
is incorporated by reference in or otherwise deemed by 1933 Act
Regulations to be a part of or included in the Registration
Statement, any preliminary prospectus or the Prospectus, as the
case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include
the filing of any document under the Securities Exchange Act of
1934 (the “1934 Act”) which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a
part of or included in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1.
Representations and Warranties .
(a)
Representations and Warranties by the Company . The Company
represents and warrants to each Underwriter as of the date hereof,
the Applicable Time referred to in Section 1(a)(i) hereof and
as of the Closing Time referred to in Section 2(b) hereof, and
agrees with each Underwriter, as follows:
(i) Status as a
Well-Known Seasoned Issuer . (A) At the time of filing the
Original Registration Statement, (B) at the time of the most
recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the 1933 Act (whether such amendment was
by post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the 1934 Act or form of prospectus),
(C) at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c) of the
1933 Act Regulations) made any offer relating to the Securities in
reliance on the exemption of Rule 163 of the 1933 Act Regulations
and (D) at the date hereof, the Company was and is a
“well-known seasoned issuer” as defined in
Rule 405 of the 1933 Act Regulations (“Rule 405”),
including not having been and not being an “ineligible
issuer” as defined in Rule 405. The Registration Statement is
an “automatic shelf registration statement,” as defined
in Rule 405, and the Securities, since their registration on
the Registration Statement, have been and remain eligible for
registration by the Company on a Rule 405 “automatic
shelf registration statement.” The Company has not received
from the Commission
2
any notice
pursuant to Rule 401(g)(2) of the 1933 Act Regulations
objecting to the use of the automatic shelf registration statement
form.
At the time of
filing the Original Registration Statement, at the earliest time
thereafter that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2)
of the 1933 Act Regulations) of the Securities and at the date
hereof, the Company was not and is not an “ineligible
issuer,” as defined in Rule 405.
(ii)
Registration Statement, Prospectus and Disclosure at Time of
Sale . The Original Registration Statement became effective
upon filing under Rule 462(e) of the 1933 Act Regulations
(“Rule 462(e)”) on April 30, 2009. No stop
order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of
the Company, are contemplated by the Commission, and any request on
the part of the Commission for additional information has been
complied with.
Any offer that is
a written communication relating to the Securities made prior to
the filing of the Original Registration Statement by the Company or
any person acting on its behalf (within the meaning, for this
paragraph only, of Rule 163(c) of the 1933 Act Regulations) has
been filed with the Commission in accordance with the exemption
provided by Rule 163 of the 1933 Act Regulations
(“Rule 163”) and otherwise complied with the
requirements of Rule 163, including without limitation the
legending requirement, to qualify such offer for the exemption from
Section 5(c) of the 1933 Act provided by Rule 163.
At the time the
Original Registration Statement became effective, at each deemed
effective date with respect to the Underwriters pursuant to
Rule 430B(f)(2) of the 1933 Act Regulations and at the Closing
Time, the Registration Statement complied and will comply in all
material respects with the requirements of the 1933 Act and the
1933 Act Regulations and the Trust Indenture Act of 1939 (the
“1939 Act”) and the rules and regulations of the
Commission under the 1939 Act (the “1939 Act
Regulations”), and did not and will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
Neither the
Prospectus nor any amendments or supplements thereto, at the time
the Prospectus or any supplement was issued and at the Closing
Time, included or will include an untrue statement of a material
fact or omitted or will 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.
Each preliminary
prospectus (including the prospectus or prospectuses filed as part
of the Original Registration Statement or any amendment thereto)
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
As of the
Applicable Time, neither (x) the Issuer General Use Free
Writing Prospectus(es) (as defined below) issued at or prior to the
Applicable Time (as defined below), the Statutory Prospectus (as
defined below) and the Final Term Sheet (as defined below), all
considered together (collectively, the “General Disclosure
Package”), nor (y) any individual Issuer Limited Use Free
Writing Prospectus, when considered together with the
General
3
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.
As of the time of
the filing of the Final Term Sheet, the General Disclosure Package,
when considered together with the Final Term Sheet (as defined in
Section 3(b)), will not include 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.
As used in this
subsection and elsewhere in this Agreement:
“Applicable
Time” means 3:45 p.m. (Eastern time) on April 30, 2009
or such other time as agreed by the Company and the
Representatives.
“Issuer Free
Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the 1933 Act
Regulations (“Rule 433”), relating to the
Securities that (i) is required to be filed with the
Commission by the Company, (ii) is a “road show that is
a written communication” within the meaning of
Rule 433(d)(8)(i), whether or not required to be filed with
the Commission or (iii) is exempt from filing pursuant to
Rule 433(d)(5)(i) because it contains a description of the
Securities or of the offering that does not reflect the final
terms, in each case 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).
“Issuer
General Use Free Writing Prospectus” means any Issuer Free
Writing Prospectus that is intended for general distribution to
prospective investors, as evidenced by its being specified in
Schedule B hereto.
“Issuer
Limited Use Free Writing Prospectus” means any Issuer Free
Writing Prospectus that is not an Issuer General Use Free Writing
Prospectus.
“Statutory
Prospectus” as of any time means the prospectus relating to
the Securities that is included in the Registration Statement
immediately prior to that time, including any document incorporated
by reference therein and any preliminary or other prospectus deemed
to be a part thereof.
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
Securities or until any earlier date that the issuer notified or
notifies the Representatives as described in Section 3(e), did
not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the
Registration Statement or the Prospectus, including any document
incorporated by reference therein and any preliminary or other
prospectus deemed to be a part thereof that has not been superseded
or modified.
The
representations and warranties in this subsection shall not apply
to (i) that part of the Registration Statement which
constitutes the Statement of Eligibility on Form T-1 of the Trustee
under the 1939 Act (the “Form T-1”) or
(ii) statements in or omissions from the Registration
Statement, the Prospectus or any Issuer Free Writing Prospectus
made in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the
Representatives expressly for use therein.
4
(iii)
Incorporated Documents . The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement and the Prospectus, at the time they were or hereafter
are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission thereunder (the “1934
Act Regulations”), and, when read together with the other
information in the Prospectus, (a) at the time the Original
Registration Statement became effective, (b) at the earlier of
time the Prospectus was first used and the date and time of the
first contract of sale of Securities in this offering and
(c) at the Closing Time, did not and will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading.
(iv)
Independent Accountants . KPMG LLP, who certified the
financial statements and supporting schedule of the Company
included in the Registration Statement, are independent public
accountants with respect to the Company and its subsidiaries within
the meaning of the 1933 Act and the rules and regulations
thereunder (the “1933 Act Regulations”) and is a
registered public accounting firm within the meaning of the
Sarbanes-Oxley Act of 2002.
(v) Financial
Statements . The financial statements included in the
Registration Statement, the General Disclosure Package and the
Prospectus, together with the related schedule and notes, present
fairly in all material respects the financial position of the
Company and its consolidated subsidiaries at the dates indicated
and the statement of earnings, stockholders’ equity and cash
flows of the Company and its consolidated subsidiaries for the
periods specified in conformity with United States generally
accepted accounting principles (“GAAP”); said financial
statements have been prepared in conformity with GAAP applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, present fairly in accordance with GAAP the
information required to be stated therein. The selected financial
data and the summary financial information included in the
Prospectus present fairly, in conformity with GAAP, the information
shown therein and have been compiled on a basis consistent in all
material respects with that of the audited financial statements
included in the Registration Statement.
(vi) No
Material Adverse Change in Business . Since the respective
dates as of which information is given in the Registration
Statement, the General Disclosure Package or the Prospectus, except
as otherwise stated therein, (A) there has been no material
adverse change or, to the knowledge of the Company, any development
involving a prospective material adverse change in the condition,
financial or otherwise, or in the earnings or business affairs of
the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business (a
“Material Adverse Effect”) and (B) except for
quarterly dividends on the common stock, par value $1.00 per share,
of the Company (the “Common Stock”) and the 4.50%
preferred stock of the Company, in amounts per share that are
consistent with past practice, there has been no dividend or
distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(vii) Good
Standing of the Company . The Company has been duly organized
and is validly existing as a corporation in good standing under the
laws of the State of Delaware, and has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the General Disclosure Package and the
Prospectus and to enter into and perform its obligations under this
Agreement, the Indenture and the Securities; and the Company is
duly qualified as a foreign corporation to transact business and is
in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing
5
of property or
the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse
Effect.
(viii) Good
Standing of Subsidiaries . Each “significant
subsidiary” of the Company (as such term is defined in
Rule 1-02 of Regulation S-X) (each a “Significant
Subsidiary” and collectively, the “Significant
Subsidiaries”) has been duly organized and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the General Disclosure Package and the
Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except as otherwise disclosed
in the Registration Statement, all of the issued and outstanding
capital stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and
is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity, except for such security interests,
mortgages, pledges, liens, encumbrances or claims arising under the
credit agreement, dated June 1, 2006, among the Company and
the lenders named therein, and except in each case where the
Company purports to own less than all of such stock or where the
breach of this representation would not result in a Material
Adverse Effect; none of the outstanding shares of capital stock of
the Company’s Significant Subsidiaries was issued in
violation of preemptive or similar rights of any securityholder of
such Significant Subsidiaries.
(ix)
Capitalization . The authorized, issued and outstanding
capital stock of the Company is as set forth in the General
Disclosure Package and the Prospectus in the column entitled
“Actual” under the caption “Capitalization”
(except for subsequent issuances, if any, pursuant to reservations,
agreements, employee benefit plans referred to in the General
Disclosure Package and the Prospectus or pursuant to the exercise
of convertible securities or options referred to in the General
Disclosure Package and the Prospectus). The shares of issued and
outstanding capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable; none of
the outstanding shares of capital stock of the Company was issued
in violation of the preemptive or other similar rights of any
securityholder of the Company.
(x) Corporate
Power . The Company has full right, power and authority to
execute and deliver this Agreement, the Securities and the
Indenture 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 this Agreement,
the Securities and the Indenture and the consummation of the
transactions contemplated thereby has been duly and validly
taken.
(xi)
Authorization of Agreement . This Agreement has been duly
authorized, executed and delivered by the Company.
(xii)
Authorization of the Indenture . The Indenture has been duly
qualified under the 1939 Act, and has been duly authorized,
executed and delivered by the Company and constitutes a valid and
binding agreement of the Company, enforceable against the Company
in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors’ rights
6
generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xiii)
Authorization of the Securities . The Securities have been
duly authorized and, at the Closing Time, will have been duly
executed by the Company and, when authenticated, issued and
delivered in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor as provided in this
Agreement, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
other similar laws relating to or affecting enforcement of
creditors’ rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), and
will be in the form contemplated by, and entitled to the benefits
of, the Indenture.
(xiv)
Description of Securities and Indenture . The Securities and
the Indenture will conform in all material respects to the
respective statements relating thereto contained in the General
Disclosure Package and the Prospectus and will be in substantially
the respective forms filed or incorporated by reference, as the
case may be, as exhibits to the Registration Statement.
(xv) Absence of
Defaults and Conflicts . Neither the Company nor any of its
subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which or any of them may be
bound, or to which any of the property or assets of the Company or
any of its subsidiaries is subject (collectively, “Agreements
and Instruments”) except for such defaults that would not
result in a Material Adverse Effect; and the execution, delivery
and performance of this Agreement, the Indenture and the Securities
and the consummation of the transactions contemplated herein and in
the Registration Statement and any other agreement or instrument
entered into or issued or to be entered into or issued by the
Company in connection with the transactions contemplated hereby or
thereby or in the Registration Statement and the consummation of
the transactions contemplated herein and in the Registration
Statement (including the issuance and sale of the Securities and
the use of the proceeds from the sale of the Securities as
described in the General Disclosure Package and the Prospectus
under the caption “Use of Proceeds”) and compliance by
the Company with its obligations hereunder and thereunder, have
been duly authorized by all necessary corporate action and do not
and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of,
or default or a Repayment Event (as defined below) 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, the Agreements and Instruments except for
such conflicts, breaches or defaults or Repayment Events or liens,
charges or encumbrances that, singly or in the aggregate, would not
result in a Material Adverse Effect, nor will such action result in
any violation of the provisions of the charter or by-laws of the
Company or any of its subsidiaries or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their assets, properties or operations. As
used herein, a “Repayment Event” means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Company or any of its subsidiaries.
7
(xvi) Absence
of Proceedings . Except as disclosed in the Registration
Statement, there is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against the Company or any of its
subsidiaries which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which would
reasonably be expected to result in a Material Adverse Effect, or
which would reasonably be expected to materially and adversely
affect the properties or assets of the Company or any of its
subsidiaries or the consummation of the transactions contemplated
by this Agreement or the performance by the Company of its
obligations hereunder or thereunder.
(xvii) Accuracy
of Exhibits . There are no contracts or documents which are
required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to
be filed as exhibits thereto which have not been so described and
filed as required.
(xviii) Absence
of Manipulation . Neither the Company nor any Affiliate has
taken, nor will the Company or any Affiliate take, directly or
indirectly, any action which is designed to or which has
constituted or which would be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the
Securities.
(xix) Absence
of Further Requirements . No filing with, or authorization,
approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is
necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or
sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement or for the due
execution, delivery or performance of the Indenture by the Company,
except (A) such as have been already obtained or as may be
required under the 1933 Act or the 1933 Act Regulations or state
securities laws and except for the qualification of the Indenture
under the 1939 Act, and the Rules and Regulations thereunder (the
“1939 Act Regulations”).
(xx) Accounting
Controls and Disclosure Controls . The Company and each of its
subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with
management’s general or specific authorization;
(B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to
maintain accountability for assets; (C) access to assets is
permitted only in accordance with management’s general or
specific authorization; and (D) the recorded accountability
for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences. The Company and its subsidiaries maintain effective
internal control over financial reporting, as defined in
Rule 13a-15(f) under the 1934 Act Regulations, and except as
described in the General Disclosure Package and the Prospectus,
since the end of the Company’s most recent audited fiscal
year, there has been (1) no material weakness in the
Company’s internal control over financial reporting (as
defined in Rules 13a-15 and 15d-15 under the 1934 Act
Regulations) (whether or not remediated) and (2) no change in
the Company’s internal control over financial reporting that
has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial
reporting. The Company and each of its subsidiaries employ
disclosure controls and procedures (as defined in Rules 13a-15
and 15d-15 under the 1934 Act Regulations) that are designed to
ensure that information required to be disclosed by the Company in
the reports that it files or submits under the 1934 Act is
recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms, and
is
8
accumulated and
communicated to the Company’s management, including its
principal executive officer or officers and principal financial
officer or officers, as appropriate, to allow timely decisions
regarding disclosure.
(xxi)
Compliance with the Sarbanes-Oxley Act . There is and has
been no failure on the part of the Company or any of the
Company’s directors or officers, in their capacities as such,
to comply in all material respects with any provision of the
Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the “Sarbanes-Oxley
Act”), including Section 402 related to loans and
Sections 302 and 906 related to certifications.
(xxii)
Investment Company Act . The Company is not required, and
after giving effect to the issuance and sale of the Securities and
the application of the net proceeds therefrom as described in the
Prospectus will not be required, to register as an
“investment company” under the Investment Company Act
of 1940, as amended (the “1940 Act”).
(xxiii) Pending
Proceedings and Examinations . The Registration Statement is
not the subject of a pending proceeding or examination under
Section 8(d) or 8(e) of the 1933 Act, and the Company is not the
subject of a pending proceeding under Section 8A of the 1933
Act in connection with the offering of the Securities.
(b)
Officer’s Certificates . Any certificate signed by any
officer of the Company or any of its subsidiaries delivered to the
Representatives or to counsel for the Underwriters shall be deemed
a representation and warranty by the Company to each Underwriter as
to the matters covered thereby.
SECTION 2. Sale
and Delivery to Underwriters; Closing .
(a)
Securities . On the basis of the representations, warranties
and agreements herein contained and subject to the terms and
conditions herein set forth, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Company, at
the price set forth in Schedule C, the aggregate principal
amount of Securities set forth in Schedule A opposite the name
of such Underwriter, plus any additional principal amount of
Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b)
Payment . Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the offices of
Shearman & Sterling LLP, 599 Lexington Avenue, New York, New
York 10022 or at such other place as shall be agreed upon by the
Representatives and the Company, at 9:00 A.M. (Eastern time) on the
third (fourth if the pricing occurs after 4:30 p.m. (Eastern time)
on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10) or
such other time not later than ten business days after such date as
shall be agreed upon by the Representatives and the Company (such
time and date of payment and delivery being herein called the
“Closing Time”).
Payment shall be
made to the Company by wire transfer of immediately available funds
to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters
of certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the
Representatives, for their own accounts and for the accounts of the
several Underwriters, to accept delivery of, receipt for, and make
payment of the purchase price for, the Securities which it has
agreed to purchase. Credit Suisse, individually and not as
representative of the Underwriters, may (but shall not be obligated
to) make payment of the purchase price for the Securities
to
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be purchased by
any Underwriter whose funds have not been received by the Closing
Time, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(c)
Denominations; Registration . Certificates for the
Securities shall be in such denominations ($1,000 or integral
multiples thereof) and registered in such names as the
Representatives may request in writing at least one full business
day before the Closing Time. The certificates representing the
Securities shall be made available for examination and packaging by
the Representatives in The City of New York not later than
10:00 a.m. (Eastern time) on the last business day prior to
the Closing Time.
SECTION 3.
Covenants of the Company . The Company covenants with each
Underwriter as follows:
(a)
Compliance with Securities Regulations and Commission Requests;
Payment of Filing Fees . The Company, subject to
Section 3(b), will comply with the requirements of
Rule 430B and will notify the Representatives immediately, and
confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement or new registration
statement relating to the Securities shall become effective, or any
supplement to the Prospectus or any amended Prospectus shall have
been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or the filing of a new
registration statement or any amendment or supplement to the
Prospectus or any document incorporated by reference therein or
otherwise deemed to be a part thereof or for additional
information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or such new registration statement or of any order
preventing or suspending the use of any preliminary prospectus, or
of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes or of any
examination pursuant to Section 8(e) of the 1933 Act concerning the
Registration Statement and (v) if the Company becomes the
subject of a proceeding under Section 8A of the 1933 Act in
connection with the offering of the Securities. The Company will
effect the filings required under Rule 424(b), in the manner
and within the time period required by Rule 424(b) (without
reliance on Rule 424(b)(8)), and will take such steps as it
deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was received
for filing by the Commission and, in the event that it was not, it
will promptly file such prospectus. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the
earliest possible moment. The Company shall pay the required
Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) (i) of the 1933 Act
Regulations without regard to the proviso therein and otherwise in
accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations
(including, if applicable, by updating the “Calculation of
Registration Fee” table in accordance with
Rule 456(b)(1)(ii) either in a post-effective amendment to the
Registration Statement or on the cover page of a prospectus filed
pursuant to Rule 424(b)).
(b)
Filing of Amendments and Exchange Act Documents; Preparation of
Final Term Sheet. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the
Registration Statement or new registration statement relating to
the Securities or any amendment, supplement or revision to either
any preliminary prospectus (including any prospectus included in
the Original Registration Statement or amendment thereto at the
time it became effective) or to the Prospectus, whether pursuant to
the 1933 Act, the 1934 Act or otherwise, and the Company will
furnish the Representatives with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file or use any such document to
which the Representatives or counsel for the Underwriters shall
object. The Company has given the Representatives notice of any
filings made pursuant to the 1934 Act or 1934 Act Regulations
within 48 hours prior to the Applicable Time; the Company will give
the Representatives notice of its intention to make any
such
10
filing from the
Applicable Time to the Closing Time and will furnish the
Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing and will not file or
use any such document to which the Representatives or counsel for
the Underwriters shall object. The Company will prepare a final
term sheet (the “Final Term Sheet”) reflecting the
final terms of the Securities as set forth in Schedule C
hereto, in form and substance satisfactory to the Representatives,
and shall file such Final Term Sheet as an “issuer free
writing prospectus” pursuant to Rule 433 prior to the
close of business two business days after the date hereof; provided
that the Company shall furnish the Representatives with copies of
any such Final Term Sheet a reasonable amount of time prior to such
proposed filing and will not use or file any such document to which
the Representatives or counsel to the Underwriters shall
object.
(c)
Delivery of Registration Statements . The Company has
furnished or will deliver to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Original
Registration Statement and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference
therein or otherwise deemed to be a part thereof) and signed copies
of all consents and certificates of experts, and will also deliver
to the Representatives, without charge, a conformed copy of the
Original Registration Statement and of each amendment thereto
(without exhibits) for each of the Underwriters. The copies of the
Original Registration Statement and each amendment thereto
furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed wi
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