Exhibit 10.1
$50,000,000
Photronics, Inc.
5.50% Convertible Senior Notes
due 2014
UNDERWRITING
AGREEMENT
September 10, 2009
September 10, 2009
Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Photronics, Inc., a Connecticut
corporation (the “ Company ”), proposes to issue
and sell to the several underwriters named in Schedule I hereto
(the “ Underwriters ”), for whom you are acting
as manager (the “ Manager ”) $50,000,000
aggregate principal amount of its 5.50% Convertible Senior Notes
due 2014 (the “ Firm Securities ”) to be issued
pursuant to the provisions of the Indenture dated as of
September 16, 2009, as amended and supplemented by the First
Supplemental Indenture dated as of September 16, 2009 (as so
amended and supplemented, the “ Indenture ”)
between us and The Bank of New York Mellon Trust Company, N.A., as
trustee (the “ Trustee ”). The Company also
proposes to issue and sell to the several Underwriters up to an
additional $7,500,000 aggregate principal amount of its 5.50%
Convertible Senior Notes due 2014 (the “ Additional
Securities ”) if and to the extent that you, as the
Manager of the offering, shall have determined to exercise, on
behalf of the Underwriters, the right to purchase the Additional
Securities granted to the Underwriters in Section 2 hereof.
The Firm Securities and the Additional Securities are hereinafter
collectively referred to as the “ Securities .”
The Securities will be convertible into shares of common stock, par
value $0.01 per share, of the Company (the “ Underlying
Securities ”). The shares of common stock, par value
$0.01 per share, of the Company are hereinafter referred to as the
Common Stock. Concurrently with the offering of the Securities, the
Company proposes to issue and sell 9,638,554 shares of its Common
Stock (the “ Firm Shares ”) and up to an
additional 1,445,783 shares of its Common Stock (together with the
Firm Shares, the “ Shares ”) if the underwriters
exercise their option to purchase additional shares in full.
Neither the offering of the Securities nor the offering of the
Shares is conditioned upon the successful completion of the other
offering.
The Company has filed with the
Securities and Exchange Commission (the “ Commission
”) a registration statement (file number 333-160235),
including a prospectus, on Form S-3, relating to securities (the
“ Shelf Securities ”), including the Securities,
to be issued from time to time by the Company and relating to
shares of Common Stock to be sold from time to time by the selling
shareholders named therein. The registration statement as amended
to the date of this Agreement, including the information (if any)
deemed to be part of the registration statement at the time of its
effectiveness pursuant to Rule 430A or
Rule 430B under the Securities Act of 1933, as
amended (the “ Securities Act ”), is hereinafter
referred to as the “ Registration Statement ”,
and the related prospectus covering the Shelf Securities dated
June 25, 2009 in the form first used to confirm sales of the
Securities (or in the form first made available to the Underwriters
by the Company to meet requests of purchasers pursuant to Rule 173
under the Securities Act) is hereinafter referred to as the “
Basic Prospectus .” If the Company has filed an
abbreviated registration statement to register additional
securities 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.
The Basic Prospectus, as supplemented by the prospectus supplement
specifically relating to the Securities in the form first used to
confirm sales of the Securities (or in the form first made
available to the Underwriters by the Company to meet requests of
purchasers pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the “ Prospectus ,”
and the term “ preliminary prospectus ” means
any preliminary form of the Prospectus. For purposes of this
Agreement, “ free writing prospectus ” has the
meaning set forth in Rule 405 under the Securities Act, “
Time of Sale Prospectus ” means the Basic Prospectus,
as supplemented by the preliminary prospectus supplement dated
September 9, 2009 relating to the Securities in the form first
made available to the Underwriters to offer the Securities,
together with the free writing prospectuses, if any, each
identified in Schedule II hereto, and “ broadly available
road show ” means a “bona fide electronic road
show” as defined in Rule 433(h)(5) under the Securities Act
that has been made available without restriction to any person. As
used herein, the terms “Registration Statement,”
“Basic Prospectus,” “preliminary
prospectus,” “Time of Sale Prospectus” and
“Prospectus” shall include the documents, if any,
incorporated by reference therein as of the date of this Agreement.
The terms “ supplement ,” “
amendment ” and “ amend ” as used
herein with respect to the Registration Statement, the Basic
Prospectus, the Time of Sale Prospectus, any preliminary prospectus
or free writing prospectus shall include all documents subsequently
filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”), that are deemed to be incorporated by reference therein.
The “ Applicable Time ” means 5:30 p.m. New York
City Time, on September 10, 2009.
1. Representations and
Warranties . The Company represents and warrants to and agrees
with each of the Underwriters that:
(a) The Registration Statement has
become effective; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or, to the knowledge of the Company,
threatened by the Commission.
(b) Each document, if any, filed or
to be filed pursuant to the Exchange Act and incorporated by
reference in the Time of Sale Prospectus or the
Prospectus
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complied or will comply when so filed in all
material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder, (i) each part of
the Registration Statement, when such part became effective, did
not contain, and each such part, as amended or supplemented, if
applicable, will not contain any 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,
(ii) the Registration Statement as of the date hereof does not
contain any 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, (iii) the Registration
Statement and the Prospectus comply, and as amended or
supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of
the Commission thereunder, (iv) the Time of Sale Prospectus
does not, and at the time of each sale of the Securities in
connection with the offering when the Prospectus is not yet
available to prospective purchasers and at the Closing Date (as
defined in Section 4), the Time of Sale Prospectus, as then
amended or supplemented by the Company, if applicable, will not,
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, (v) each broadly available road show, if any, when
considered together with the Time of Sale Prospectus, does not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading and (vi) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this paragraph
do not apply to (A) statements or omissions in the
Registration Statement, the Time of Sale Prospectus or the
Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Manager expressly for use therein or (B) that part of the
Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of 1939, as
amended (the “ Trust Indenture Act ”), of the
trustee named therein.
(c) The Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the state of Connecticut, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Time of Sale Prospectus and is
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 owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction. The Company is not an
“ineligible issuer” in connection with the offering
pursuant to Rules 164, 405 and 433 under the Securities Act. Any
free writing prospectus that
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the Company is required to file pursuant to Rule
433(d) under the Securities Act has been, or will be, filed with
the Commission in accordance with the requirements of the
Securities Act and the applicable rules and regulations of the
Commission thereunder. Each free writing prospectus that the
Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act or that was prepared by or behalf of or
used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and
the applicable rules and regulations of the Commission thereunder.
Except for the free writing prospectuses, if any, identified in
Schedule II hereto forming part of the Time of Sale Prospectus, and
electronic road shows, if any, each furnished to you before first
use, the Company has not prepared, used or referred to, and will
not, without your prior consent, prepare, use or refer to, any free
writing prospectus.
(d) Each significant subsidiary of
the Company within the meaning of Rule 1-02(w) of Regulation S-X
under the Securities Act (each a “ Significant
Subsidiary ”, collectively the “ Significant
Subsidiaries ”) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, and has the power and authority
(corporate and other) to own its properties and conduct its
business as described in the Time of Sale Prospectus and is 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 owns or leases properties or conducts any business so
as to require such qualification, or is subject to no material
liability or disability by reason of the failure to be so qualified
in any such jurisdiction.
(e) This Agreement has been duly
authorized, executed and delivered by the Company.
(f) The Company has an authorized
capitalization as set forth in the Time of Sale Prospectus and the
Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are
fully paid and non-assessable; and all of the issued shares of
capital stock of each wholly-owned subsidiary of the Company, and
all of the shares of capital stock of each other subsidiary that
are owned by the Company, have been duly and validly authorized and
issued, are fully paid and non-assessable and (except for
directors’ qualifying shares and except as set forth in the
Time of Sale Prospectus) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims, except in the case of any shares pledged pursuant to the
Credit Agreement, dated as of June 6, 2007, as amended, among
the Company, the foreign subsidiary borrowers party thereto, the
lenders party thereto and JPMorgan Chase Bank, National
Association, as administrative agent, as amended (the “
Credit Agreement ”), or the Loan Agreement dated as of
June 8, 2009, as amended, among the Company, the lenders party
thereto and JPMorgan Chase Bank, National Association as
administrative agent and collateral agent (the “ Loan
Agreement ”).
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(g) The authorized capital stock of
the Company conforms as to legal matters to the description thereof
contained in each of the Time of Sale Prospectus and the
Prospectus.
(h) The Securities 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 entitled to the benefits provided by the Indenture;
the Indenture has been duly authorized and, when executed and
delivered by the Company and the Trustee, will constitute a valid
and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors’ rights and to general equity
principles and the Securities and the Indenture will conform in all
material respects to the descriptions thereof in each of the Time
of Sale Prospectus and the Prospectus.
(i) The Underlying Securities
initially issuable upon conversion of the Securities have been duly
and validly authorized and reserved for issuance and, when issued
and delivered in accordance with the provisions of the Securities
and the Indenture, will be duly and validly issued, fully paid and
non-assessable and will conform in all material respects to the
description thereof contained in each of the Time of Sale
Prospectus and the Prospectus, and the issuance of the Underlying
Securities will not be subject to any preemptive or similar
rights
(j) The issue and sale of the
Securities and the compliance by the Company with all of the
provisions of the Securities, the Indenture and this Agreement and
the consummation of the transactions herein and therein
contemplated will not materially conflict with or result in a
material breach or violation of any of the terms or provisions of,
or constitute a material default under, 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, except in the case of the Credit Agreement and the Loan
Agreement as set forth in the Time of Sale Prospectus and the
Prospectus, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of the
Company or any material violation of any statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their properties; 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 Securities by the Company or the consummation by the Company of
the transactions contemplated by this Agreement and the Indenture
except (i) to the extent the failure to obtain such consent,
approval, authorization, order, registration or qualification would
not materially adversely affect the ability of the Company to
consummate the
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transactions contemplated by this Agreement and
the Indenture; or (ii) such as have been obtained or made or
such as may be required under state securities or Blue Sky laws in
connection with the offer and sale of the Securities by the
Underwriters.
(k) Neither the Company nor any of
its Significant Subsidiaries has sustained since the date of the
latest audited financial statements included or incorporated by
reference in the Time of Sale Prospectus any material loss or
interference with its 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, otherwise
than as set forth or contemplated in the Time of Sale Prospectus;
and, since the date as of which information is given in the Time of
Sale Prospectus, there has not been any material change in the
capital stock or long-term debt of the Company or any of its
Significant Subsidiaries or any material adverse change, except for
the sale of the Shares and the sale by the Company of the
Securities hereunder, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, shareholders’ equity or
results of operations of the Company and its subsidiaries taken as
a whole.
(l) The Company and its subsidiaries
have good and marketable title in fee simple to all material real
property and good and marketable title to all material personal
property owned by them, in each case free and clear of all liens,
encumbrances and defects, except such as are described in the Time
of Sale Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries;
and any 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 are not material and do
not interfere with the use made and proposed to be made of such
property and buildings by the Company and its
subsidiaries.
(m) There are no legal or
governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any
of its subsidiaries is subject II. other than proceedings
accurately described in all material respects in the Time of Sale
Prospectus and proceedings that would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole, or on
the power or ability of the Company to perform its obligations
under this Agreement or to consummate the transactions contemplated
by the Time of Sale Prospectus or III. that are required to be
described in the Registration Statement or the Prospectus and are
not so described; and there are no statutes, regulations, contracts
or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement that are not described or filed as
required.
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(n) Each preliminary prospectus
filed as part of the registration statement as originally filed or
as part of any amendment thereto, or filed pursuant to Rule 424
under the Securities Act, complied when so filed in all material
respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(o) The Company is not, and after
giving effect to the offering and sale of the Securities, will not
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.
(p) The Company and its Significant
Subsidiaries and, to the Company’s knowledge, its other
subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment,
hazardous or toxic substances or wastes, pollutants or contaminants
(“ Environmental Laws ”), (ii) have
received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where
such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or
approvals would not, individually or in the aggregate, have a
material adverse effect on the consolidated financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries taken as a whole.
(q) There are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Securities registered pursuant to the
Registration Statement, except the Registration Rights Agreement
dated as of May 15, 2009 (the “ Registration Rights
Agreement ”) among the Company and the Holders named
therein.
(r) 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 applicable provision of the Sarbanes-Oxley Act of
2002, as amended, and the rules and regulations promulgated in
connection therewith, including Section 402 related to loans
and Sections 302 and 906 related to certifications.
(s) Neither the Company nor any of
the Significant Subsidiaries or affiliates of the Company, nor, any
director, officer, employee, nor, to the Company’s knowledge,
any agent or representative of the Company nor any director,
officer, employee, agent or representative of the Significant
Subsidiaries
7
or the Company’s affiliates, has taken or
will take any action in furtherance of an offer, payment, promise
to pay, or authorization or approval of the payment or giving of
money, property, gifts or anything else of value, directly or
indirectly, to any “government official” (including any
officer or employee of a government or government-owned or
controlled entity or of a public international organization, or any
person acting in an official capacity for or on behalf of any of
the foregoing, or any political party or party official or
candidate for political office) to influence official action or
secure an improper advantage; and the Company and the Significant
Subsidiaries and, to the knowledge of the Company, its affiliates,
have conducted their businesses in compliance with applicable
anti-corruption laws and have instituted and maintain and will
continue to maintain policies and procedures designed to promote
and achieve compliance with such laws and with the representation
and warranty contained herein.
(t) The operations of the Company
and the Significant Subsidiaries are in material compliance with
all applicable financial recordkeeping and reporting requirements,
including those of the Bank Secrecy Act, as amended by Title III of
the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA
PATRIOT Act), and the applicable anti-money laundering statutes of
jurisdictions where the Company and the Significant Subsidiaries
conduct business, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively,
the “ Anti-Money Laundering Laws ”), and no
action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company
or any of the Significant Subsidiaries with respect to the
Anti-Money Laundering Laws is pending or, to the knowledge of the
Company, threatened.
(u) (i) Neither the Company nor any
of the Significant Subsidiaries (collectively, the “
Entity ”), nor, any director, officer or, to the
knowledge of the Company, any employee, agent, affiliate or
representative of the Company, nor, to the knowledge of the
Company, any director, officer, employee, agent affiliate or
representative of the Significant Subsidiaries, is an individual or
entity (“ Person ”) that is, or is owned or
controlled by a Person that is:
(A) the subject of any sanctions
administered or enforced by the U.S. Department of Treasury’s
Office of Foreign Assets Control (“ OFAC ”) or
the United Nations Security Council (“ UNSC ”)
(collectively, “ Sanctions ”), nor
(B) located, organized or resident
in a country or territory that is the subject of Sanctions
(including, without limitation, Burma/Myanmar, Cuba, Iran, North
Korea, Sudan and Syria).
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(ii) The Entity represents and
covenants that it will not, directly or indirectly, use the
proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or
other Person:
(A) to fund or facilitate any
activities or business of or with any Person or in any country or
territory that, at the time of such funding or facilitation, is the
subject of Sanctions; or
(B) in any other manner that will
result in a violation of Sanctions by any Person (including any
Person participating in the offering, whether as underwriter,
advisor, investor or otherwise).
(iii) The Entity represents and
covenants that, for the past 3 years, it has not knowingly engaged
in, is not now knowingly engaged in, and will not engage in, any
dealings or transactions with any Person, or in any country or
territory, that at the time of the dealing or transaction is or was
the subject of Sanctions.
2. Agreements to Sell and
Purchase . The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly,
to purchase from the Company the respective principal amount of
Firm Securities set forth in Schedule I hereto opposite its name at
a purchase price of 96.125% of the principal amount thereof (the
“ Purchase Price ”) plus accrued interest, if
any, from September 16, 2009.
On the basis of the representations
and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to sell to the
Underwriters the Additional Securities, and the Underwriters shall
have the right to purchase, severally and not jointly, up to
$7,500,000 aggregate principal amount of Additional Securities at
the Purchase Price plus accrued interest from September 16,
2009. You may exercise this right on behalf of the Underwriters in
whole or from time to time in part by giving written notice not
later than 30 days after the date of this Agreement. Any exercise
notice shall specify the principal amount of Additional Securities
to be purchased by the Underwriters and the date on which such
Additional Securities are to be purchased. Each purchase date must
be at least one business day after the written notice is given and
may not be earlier than the closing date for the Firm Securities
nor later than ten business days after the date of such notice.
Additional Securities may be purchased as provided in
Section 4 hereof solely for the purpose of covering
over-allotments
9
made in connection with the offering of the Firm
Securities. On each day, if any, that Additional Securities are to
be purchased (an “ Option Closing Date ”), each
Underwriter agrees, severally and not jointly, to purchase the
principal amount of Additional Securities that bears the same
proportion to the total principal amount of Additional Securities
to be purchased on such Option Closing Date as the principal amount
of Firm Securities set forth in Schedule I hereto opposite the name
of such Underwriter bears to the total principal amount of Firm
Securities.
The Company hereby agrees that,
without the prior written consent of the Manager, it will not,
during the period ending 90 days after the date of the Prospectus,
(i) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement
under the Securities Act with respect to any of the foregoing or
(ii) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction
described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the
sale of the Securities under this Agreement, or the Underlying
Securities issuable upon conversion of the Securities; (B) the
issuance or sale of Common Stock or the grant of options to
purchase Common Stock by the Company in connection with employee
benefit plans as in effect at the date of the Prospectus,
(C) the Shares, (D) the filing of a registration
statement under the Registration Rights Agreement, (E) the
issuance of warrants to purchase up to 750,000 shares of Common
Stock or the Common Stock issuable upon exercise of the warrants in
connection with a technology alliance or (F) the issuance by
the Company of any shares of common stock upon the exercise of an
option or warrant, or the conversion of a security outstanding on
the date hereof of which the Underwriters have been
advised.
Notwithstanding the foregoing, if
(1) during the last 17 days of the 90-day restricted period,
the Company issues an earnings release or material news or a
material event relating to the Company occurs; or (2) prior to
the expiration of the 90-day restricted period, the Company
announces that it will release earnings results or becomes aware
that material news or a material event will occur during the 16-day
period beginning on the last day of the 90-day restricted period,
the restrictions imposed by this paragraph shall continue to apply
until the expiration of the 18-day period beginning on the issuance
of the earnings release or the occurrence of the material news or
material event, as applicable.
3. Terms of Public Offering .
The Company is advised by you that the Underwriters propose to make
a public offering of their respective portions of the Firm
Securities as soon after the Registration Statement and this
Agreement have
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become effective as in your judgment is
advisable. The Company is further advised by you that the
Securities are to be offered to the public upon the terms set forth
in the Prospectus.
4. Payment and Delivery .
Payment for the Firm Securities shall be made to the Company in
Federal or other funds immediately available in New York City
against delivery of such Firm Securities for the respective
accounts of the several Underwriters at 10:00 a.m. New York City
time, on September 16, 2009, or at such other time on the same
or such other date, not later than September 23, 2009, as the
Manager and the Company agree upon in writing. The time and date of
such payment are hereinafter referred to as the “ Closing
Date .”
Payment for any Additional
Securities shall be made to the Company in Federal or other funds
immediately available in New York City against delivery of such
Additional Securities for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date
specified in the corresponding notice described in Section 2
or at such other time on the same or on such other date, in any
event not later than ten business days after the date of such
notice, as shall be designated in writing by you.
The Firm Securities and the
Additional Securities shall be in global form, and registered in
such names and in such denominations as you shall request in
writing not later than one full business day prior to the Closing
Date or the applicable Option Closing Date, as the case may be. The
Firm Securities and the Additional Securities shall be delivered to
you on the Closing Date or an Option Closing Date, as the case may
be, for the respective accounts of the several Underwriters, with
any transfer taxes payable in connection with the transfer of the
Securities to the Underwriters duly paid, against payment of the
Purchase Price therefor plus accrued interest, if any, from the
date of payment and delivery.
5. Conditions to the
Underwriters’ Obligations . The obligations of the
Company to sell the Securities to the Underwriters and the several
obligations of the Underwriters to purchase and pay for the
Securities on the Closing Date are subject to the following
conditions: (i) the Registration Statement shall have become
effective, and the Underwriters shall have received notice thereof,
not later than 5:00 p.m., New York City time, on the date hereof;
(ii) no order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceeding for such purpose
shall be pending before or, to the Company’s knowledge,
threatened by the Commission; and (iii) the Prospectus shall
have been timely filed with the Commission under the Securities
Act.
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The several obligations of the
Underwriters are subject to the following further
conditions:
(a) Subsequent to the execution and
delivery of this Agreement and prior to the Closing
Date:
(i) there shall not have occurred
any downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible change,
in the rating accorded any of the Company’s securities by any
“nationally recognized statistical rating
organization,” as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred
any change, or any development involving a prospective change, in
the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Time of Sale Prospectus as of the
date of this Agreement that, in your judgment, is material and
adverse and that makes it, in your judgment, impracticable to
market the Securities on the terms and in the manner contemplated
in the Time of Sale Prospectus.
(b) The Underwriters shall have
received on the Closing Date a certificate, dated the Closing Date
and signed by an executive officer of the Company, to the effect
set forth in Section 5(a)(i) above and to the effect that the
representations and warranties of the Company contained in this
Agreement are true and correct as of the Closing Date, and that the
Company has complied in all material respects with all of the
agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing
Date.
The officer signing and delivering
such certificate may rely upon the best of his or her knowledge as
to proceedings threatened.
(c) The Underwriters shall have
received on the Closing Date an opinion of Shearman &
Sterling LLP, New York counsel for the Company, dated the Closing
Date, to the effect that:
(i) assuming the Securities have
been duly authorized and executed by the Company, and, when the
Securities have been authenticated by the Trustee in accordance
with the provisions of the Indenture and delivered and paid for by
the Underwriters in accordance with the terms of this Agreement,
the Securities will be the legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with
their terms and entitled to the benefits of the Indenture, except
as the enforcement thereof may be limited by the effect of
any
12
applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors’ rights generally (incl
