Lorillard Tobacco
Company
8.125% Senior Notes due
2019
Guaranteed by
Lorillard, Inc.
BARCLAYS
CAPITAL INC.,
As Representative of the several
Underwriters
named in Schedule I hereto
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
Lorillard
Tobacco Company, a Delaware corporation (the “ Company
”), proposes to issue and sell $750,000,000 aggregate
principal amount of its 8.125% Senior Notes due 2019 (the “
Notes ”) to the several underwriters named on
Schedule I hereto (the “ Underwriters ”),
for which Barclays Capital Inc. is acting as representative (the
“ Representative ”). The Notes will
(i) have terms and provisions which are summarized in the
Disclosure Package as of the Applicable Time and the Prospectus
dated as of the date hereof (each as defined in Section 1(a)
hereof) and (ii) be issued pursuant to a Base Indenture to be
dated June 23, 2009, as supplemented by the First Supplemental
Indenture to be dated June 23, 2009 (together, the “
Indenture ”) between the Company and The Bank of New
York Mellon Trust Company, N.A., as Trustee (the “
Trustee ”). The Company’s obligation under the
Notes will be fully and unconditionally guaranteed on a senior
unsecured basis (the “ Guarantee ”) by its
parent company, Lorillard, Inc., a Delaware corporation (the
“ Guarantor ”). This agreement (this “
Agreement ”) is to confirm the agreement concerning
the purchase of the Notes from the Company by the
Underwriters.
1.
Representations, Warranties and Agreements of the Company and
the Guarantor . The Company and the Guarantor represent and
warrant to, and agree with, each Underwriter that:
(a) An
“automatic shelf registration statement” (as defined in
Rule 405 under the Securities Act of 1933, as amended (the
“ Securities Act ”)) on Form S-3 in respect of
the Notes (File No. 333-159902) (i) has been prepared by the
Company and the Guarantor in conformity with the requirements of
the Securities Act, and the rules and regulations (the “
Rules and Regulations ”) of the Securities and
Exchange Commission (the “ Commission ”)
thereunder, (ii) has been filed with the Commission under the
Securities Act not earlier than the date that is three years prior
to the Closing Date (as defined in Section 3 hereof) and
(iii) upon its filing with the Commission, automatically
became and is effective under the Securities Act. Copies of such
registration statement and any amendment thereto (excluding
exhibits to such registration statement but including all documents
incorporated by reference
in each
prospectus contained therein) have been delivered by the Company to
the Representative; and no other document with respect to such
registration statement or any such document incorporated by
reference therein has heretofore been filed or transmitted for
filing with the Commission. For purposes of this Agreement, the
following terms have the specified meanings:
“
Applicable Time ” means 1:48 p.m. (New York City time)
on the date of this Agreement;
“ Base
Prospectus ” means the base prospectus filed as part of
the Registration Statement, in the form in which it has most
recently been amended on or prior to the date hereof, relating to
the Notes;
“Disclosure Package ” means, as of the
Applicable Time, the most recent Preliminary Prospectus, together
with each Issuer Free Writing Prospectus filed or used by the
Company on or before the Applicable Time and identified on
Schedule II hereto, other than a road show that is an Issuer
Free Writing Prospectus under Rule 433 of the Rules and
Regulations;
“
Effective Date ” means any date as of which any part
of the Registration Statement or any post-effective amendment
thereto relating to the Notes became, or is deemed to have become,
effective under the Securities Act in accordance with the Rules and
Regulations (including pursuant to Rule 430B of the Rules and
Regulations);
“ Final
Term Sheet ” means the term sheet prepared pursuant to
Section 5(a) of this Agreement and substantially in the form
attached in Schedule III hereto;
“ Issuer
Free Writing Prospectus ” means each “free writing
prospectus” (as defined in Rule 405 of the Rules and
Regulations) prepared by or on behalf of the Company or used or
referred to by the Company in connection with the offering of the
Notes, including the Final Term Sheet;
“
Preliminary Prospectus ” means any preliminary
prospectus relating to the Notes, including the Base Prospectus and
any preliminary prospectus supplement thereto, included in the
Registration Statement or as filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations and provided to the
Representative for use by the Underwriters;
“
Prospectus ” means the final prospectus relating to
the Notes, including the Base Prospectus and the final prospectus
supplement thereto relating to the Notes, as filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations and
provided to the Representative for use by the Underwriters;
and
“
Registration Statement ” means, collectively, the
various parts of the above-referenced registration statement, each
as amended as of the Effective Date for such part, including any
Preliminary Prospectus or the Prospectus and all exhibits to such
registration statement.
Any
reference to the “most recent Preliminary Prospectus”
will be deemed to refer to the latest Preliminary Prospectus
included in the Registration Statement or filed pursuant to Rule
424(b) of the Rules and Regulations prior to or on the date hereof
(including, for purposes of this Agreement, any documents
incorporated by reference therein prior to or on the date of this
Agreement). Any reference to any Preliminary Prospectus or the
Prospectus will be deemed to refer to and include any documents
incorporated by reference therein pursuant to Form S-3 under the
Securities Act as of the date of such Preliminary Prospectus or the
Prospectus, as the case may be. Any reference to any amendment
or
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supplement to
any Preliminary Prospectus or the Prospectus will be deemed to
refer to and include any document filed under the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”), after the date of such Preliminary Prospectus or the
Prospectus, as the case may be, and incorporated by reference in
such Preliminary Prospectus or the Prospectus, as the case may be;
and any reference to any amendment to the Registration Statement
will be deemed to include any annual report of the Company on Form
10-K filed with the Commission pursuant to Section 13(a) or 15(d)
of the Exchange Act after the Effective Date that is incorporated
by reference in the Registration Statement.
(b) The
Commission has not issued any order preventing or suspending the
effectiveness of the Registration Statement or preventing or
suspending the use of any Preliminary Prospectus, any Issuer Free
Writing Prospectus or the Prospectus; and no proceeding for any
such purpose or pursuant to Section 8A of the Securities Act
against the Company or related to the offering has been instituted
or threatened by the Commission. The Commission has not issued any
order directed to any document incorporated by reference in the
most recent Preliminary Prospectus or the Prospectus, and no
proceeding has been instituted or threatened by the Commission with
respect to any document incorporated by reference in the most
recent Preliminary Prospectus or the Prospectus. The Commission has
not notified the Company of any objection to the use of the form of
the Registration Statement.
(c) The
Guarantor has been, and continues to be, a “well-known
seasoned issuer” (as defined in Rule 405 of the Rules
and Regulations) and the Company has not been, and continues not to
be, an “ineligible issuer” (as defined in Rule 405
of the Rules and Regulations), in each case at all times relevant
under the Securities Act in connection with the offering of the
Notes.
(d) The
Registration Statement conformed on the Effective Date and
conforms, and any amendment to the Registration Statement filed
after the date hereof will conform, in all material respects to the
requirements of the Securities Act and the Rules and Regulations.
The most recent Preliminary Prospectus conforms on the date hereof,
and the Prospectus, and any amendment or supplement thereto, will
conform as of its date and as of the Closing Date, in all material
respects to the requirements of the Securities Act and the Rules
and Regulations. The documents incorporated by reference in the
most recent Preliminary Prospectus or the Prospectus, when they
became effective or were filed with the Commission, as the case may
be, conformed in all material respects, to the requirements of the
Securities Act or the Exchange Act, as applicable, and the Rules
and Regulations, and any further documents so filed and
incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be,
will conform, in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the Rules
and Regulations; and no such documents have been filed with the
Commission since the close of business of the Commission on the
Business Day immediately prior to the date hereof.
(e) The
Registration Statement did not, as of the Effective Date, contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however,
that no representation or warranty is made as to information
contained in or omitted from the Registration Statement in reliance
upon and in conformity with written information furnished to the
Company through the Representative by or on behalf of any
Underwriter specifically for inclusion therein (which information
is specified in Section 12 hereof).
(f) The
Disclosure Package did not, as of the Applicable Time, contain any
untrue statement of a material fact or omit to state any 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; provided, however, that no
representation or warranty is made as to information contained
in
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or omitted from
the Disclosure Package in reliance upon and in conformity with
written information furnished to the Company through the
Representative by or on behalf of any Underwriter specifically for
inclusion therein (which information is specified in
Section 12 hereof).
(g) The
Prospectus, and any amendment or supplement thereto, will not, as
of its date and on the Closing Date, contain any untrue statement
of a material fact or omit to state any 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; provided, however, that no representation or
warranty is made as to information contained in or omitted from the
Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Representative by
or on behalf of any Underwriter specifically for inclusion therein
(which information is specified in Section 12
hereof).
(h) The
documents incorporated by reference in any Preliminary Prospectus
or the Prospectus did not, and any further documents incorporated
by reference therein will not, when filed with the Commission,
contain any untrue statement of a material fact or omit to state
any 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.
(i) Each
of the Company, the Guarantor and their Significant Subsidiaries,
all of which are identified on Exhibit A hereto, has
been duly organized and is validly existing and in good standing as
a corporation or other business entity under the laws of its
jurisdiction of incorporation or organization, with all power and
authority necessary to conduct the business in which it is engaged
or to own or lease its properties; and the Company and each of its
Significant Subsidiaries is duly qualified to do business and in
good standing as a foreign corporation or other business entity in
each jurisdiction in which its ownership or lease of property or
the conduct of its business requires such qualification, except
where the failure to be so qualified or in good standing would not,
individually or in the aggregate, have a material adverse effect on
(i) the condition (financial or otherwise), results of operations,
stockholders’ equity, properties or business of the Company
and its Subsidiaries (as defined in Section 16 hereof) taken
as a whole or (ii) the ability of the Company to perform its
obligations under this Agreement, the Indenture or the Notes (a
“ Material Adverse Effect ”).
(j) All
of the outstanding shares of capital stock of each Significant
Subsidiary of the Company and the Guarantor that is a corporation
have been duly authorized and validly issued and are fully paid and
nonassessable. Except as disclosed in the most recent Preliminary
Prospectus and the Prospectus, all of the outstanding shares of
capital stock, partnership interests or other ownership interests
of each Significant Subsidiary of the Company and the Guarantor are
owned directly or indirectly by the Company and/or the Guarantor,
free and clear of any claim, lien, encumbrance, security interest,
restriction upon voting or transfer, preemptive rights or any other
claim of any third party, except as would not, individually or in
the aggregate, have a Material Adverse Effect.
(k) This
Agreement has been duly authorized, executed and delivered by the
Company and the Guarantor and constitutes the valid and binding
agreement of the Company and the Guarantor, enforceable against the
Company and the Guarantor in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or similar laws relating to or affecting
creditors’ rights generally and by general equitable
principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
(l) The
Indenture has been duly authorized, executed and delivered by the
Company and the Guarantor and is a valid and binding agreement of
the Company and the Guarantor enforceable against the Company and
the Guarantor in accordance with its terms, except as the
enforceability thereof
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may be limited
by bankruptcy, insolvency, reorganization or similar laws relating
to or affecting creditors’ rights generally and by general
equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law). The Indenture
(i) has been duly qualified under the Trust Indenture Act of
1939, as amended (the “ Trust Indenture Act ”),
(ii) complies as to form with the requirements of the Trust
Indenture Act and (iii) conforms to the description thereof in
the most recent Preliminary Prospectus and the
Prospectus.
(m) The
Notes have been duly authorized by the Company and, when executed
by the Company and authenticated by the Trustee in accordance with
the Indenture and delivered to the Underwriters against payment
therefor in accordance with the terms of this Agreement, will be
validly issued and delivered, and will constitute valid and binding
obligations of the Company entitled to the benefits of the
Indenture and enforceable against the Company in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws
relating to or affecting the enforcement of creditors’ rights
generally and by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity
or at law), and the Notes conform, or will conform, to the
description thereof in the Disclosure Package and the
Prospectus.
(n) The
Guarantee has been duly authorized, executed and delivered by the
Guarantor and, when the Indenture has been duly executed and
delivered by the Company, the Guarantor and the Trustee and the
Notes are duly issued, authenticated and delivered in accordance
with this Agreement, will be the valid and binding obligation of
the Guarantor, entitled to the benefits of the Indenture and
enforceable against the Guarantor in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws relating to or
affecting the enforcement of creditors’ rights generally and
by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law),
and the Guarantee conforms, or will conform, to the description
thereof in the Disclosure Package and the Prospectus.
(o) None
of the execution or delivery of this Agreement by the Company or
the Guarantor, the consummation of the transactions contemplated
hereby, the execution and delivery of the Indenture and the Notes
by the Company or compliance by the Company and the Guarantor with
all of the provisions of this Agreement, the Indenture, the Notes
and the Guarantee, as applicable, will result in a breach or
violation of, or constitute a default under, or result in the
creation or imposition of any claim, lien, encumbrance or security
interest upon any property or asset of the Company or the Guarantor
or any of its Subsidiaries under, (i) the certificate of
incorporation, by-laws, partnership agreement or other constitutive
documents of the Company or any of its Significant Subsidiaries,
(ii) any loan agreement, indenture, mortgage, deed of trust or
other agreement or instrument to which the Company or any of its
Significant Subsidiaries is a party or by which any of them is
bound or to which any of their properties is subject, or
(iii) any law or any rule, regulation, order or decree of any
governmental agency or body or court having jurisdiction over the
Company or any of its Significant Subsidiaries or any of their
respective properties or assets.
(p) Neither
the filing of the Registration Statement, the most recent
Preliminary Prospectus or the Prospectus nor the offer or sale of
the Notes as contemplated by this Agreement gives rise to any
rights, other than those which have been duly waived or satisfied,
for or relating to the registration of any securities of the
Company.
(q) Neither
the Company, the Guarantor nor any of their Subsidiaries
(i) is in violation or breach of its certificate of
incorporation, by-laws, partnership agreement or other constitutive
documents, (ii) is 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 loan
agreement, indenture, mortgage, deed of trust or other agreement or
instrument to which it is a party or by which it is bound
or
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to which any of
its properties or assets is subject, (iii) is in violation of
any law or any rule, regulation, order or decree of any
governmental agency or body or court having jurisdiction over the
Company, the Guarantor or any of their Subsidiaries or its
respective property or assets or (iv) has failed to obtain any
license, permit, certificate, franchise or other governmental
authorization or permit necessary for the conduct of its business
or the ownership or holding of its property, except in the case of
clauses (ii), (iii) and (iv), to the extent any such
violation, breach, default or failure would not, individually or in
the aggregate, have a Material Adverse Effect.
(r) No
consent, approval, order or authorization of any governmental
agency or body or court is required in connection with the
consummation of the transactions contemplated by this Agreement,
the Indenture or the Notes, except for consents, approvals, orders
and authorizations required under the securities or “Blue
Sky” laws of certain jurisdictions, and except, further, for
such consents, approvals, orders and authorizations which have been
obtained and are in full force and effect.
(s) There
is no contract, instrument or document required to be described in
the Registration Statement, any Preliminary Prospectus or the
Prospectus or to be filed as an exhibit to the Registration
Statement or to a document incorporated by reference into the
Registration Statement, any Preliminary Prospectus or the
Prospectus which is not described or filed as required.
(t) Since
the respective dates as of which information is given in the most
recent Preliminary Prospectus and the Prospectus, there has not
been any change in the capital stock or long-term debt of the
Company, the Guarantor or any of their Subsidiaries or any adverse
change, or any development involving a prospective adverse change,
in or affecting the condition (financial or otherwise), results of
operations, stockholders’ equity, properties, management,
business or prospects of the Company and its Subsidiaries taken as
a whole, in each case except as would not, individually or in the
aggregate, have a Material Adverse Effect.
(u) Since
the respective dates as of which information is given in the most
recent Preliminary Prospectus and the Prospectus, neither the
Company nor the Guarantor has (i) incurred any material
liability or obligation, direct or contingent, other than
liabilities and obligations that were incurred in the ordinary
course of business, (ii) entered into any material transaction
not in the ordinary course of business or (iii) declared or
paid any dividend on its capital stock other than the dividend paid
on June 12, 2009.
(v) The
Guarantor has an authorized capitalization as set forth in the most
recent Preliminary Prospectus and the Prospectus.
(w) The
financial statements and the notes thereto included or incorporated
by reference in the most recent Preliminary Prospectus and the
Prospectus present fairly in all material respects the financial
condition, results of operations and cash flows of the entities
purported to be shown thereby at the dates and for the periods
indicated and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis
throughout the periods indicated and comply as to form in all
material respects with the Rules and Regulations, except as
otherwise noted therein; and the supporting schedules included or
incorporated by reference in the most recent Preliminary Prospectus
and the Prospectus present fairly in all materials respects the
information required to be stated therein.
(x) Deloitte
& Touche llp ,
which have audited certain financial statements of the Company, the
Guarantor and their Subsidiaries, and which have audited the
Guarantor’s internal control over financial reporting and
management’s assessment thereof, are, to the knowledge of the
Company and the Guarantor, an independent registered public
accounting firm as required by the Securities Act and the Rules and
Regulations and the rules and regulations of the Public Company
Accounting Oversight Board.
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(y) Neither
the Company, the Guarantor nor any of their Subsidiaries is, or on
the Closing Date and, after giving effect to the offering of the
Notes and the application of the proceeds therefrom as described
under “Use of Proceeds” in each of the most recent
Preliminary Prospectus and the Prospectus will be, an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended.
(z) There
is no litigation (including any settlement of litigation) or legal
or governmental proceeding (including any settlement thereof) to
which the Company, the Guarantor or any of their Subsidiaries is a
party or to which any property or assets of the Company, the
Guarantor or any of their Subsidiaries are subject or which is
pending or, to the knowledge of the Company or the Guarantor,
threatened against the Company, the Guarantor or any of their
Subsidiaries which is required to be disclosed in the most recent
Preliminary Prospectus and the Prospectus and is not
disclosed.
(aa) Neither
the Company, the Guarantor nor any of their Subsidiaries has taken,
directly or indirectly, any action designed to cause or result in,
or which might cause or result in, the stabilization or
manipulation of the price of the Notes to facilitate the sale or
resale of the Notes.
(bb) There
is, and has been, no failure on the part of the Guarantor or any of
the Guarantor’s directors or officers, in their capacities as
such, to comply with the provisions of the Sarbanes-Oxley Act of
2002 and the rules and regulations promulgated in connection
therewith.
(cc) Each
of the Company, the Guarantor and their Subsidiaries maintains a
system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act)
sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets, (iii) access to assets is permitted only in accordance
with U.S. management’s general or specific authorization and
(iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action
is taken with respect thereto. The Company and the
Guarantor’s internal control over financial reporting is
effective, and neither the Company nor the Guarantor is aware of
any material weaknesses in its internal control over financial
reporting.
(dd) The
Company maintains disclosure controls and procedures (as such term
is defined in Rule 13a-15(e) under the Exchange Act) that comply
with the requirements of the Exchange Act; and such disclosure
controls and procedures have been designed to ensure that material
information relating to the Company, the Guarantor and their
Subsidiaries is made known to the Company’s principal
executive officer and/or principal financial officer by others
within those entities; and such disclosure controls and procedures
are effective.
(ee) Except
as described in the most recent Preliminary Prospectus and the
Prospectus, no labor disturbance by the employees of the Company,
the Guarantor or their Subsidiaries exists or, to the knowledge of
the Company or the Guarantor, is threatened that would,
individually or in the aggregate, have a Material Adverse
Effect.
(ff) The
Company, the Guarantor and each of their Subsidiaries have filed
all federal, state, local and foreign income and franchise tax
returns required to be filed through the date hereof, subject to
permitted extensions, and have paid all taxes due thereon, and no
tax deficiency has been determined adversely to the Company, the
Guarantor or any of their Subsidiaries, nor does the Company or the
Guarantor have any knowledge of any tax deficiencies that would,
individually or in the aggregate, have a Material Adverse
Effect.
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(gg) The
Company, the Guarantor and each of their Subsidiaries have such
permits, licenses, patents, franchises, certificates of need and
other approvals or authorizations of governmental or regulatory
authorities (“ Permits ”) as are necessary under
applicable law to own their properties and conduct their businesses
in the manner described in the most recent Preliminary Prospectus
and the Prospectus, except as would not, individually or in the
aggregate, have a Material Adverse Effect; and each of the Company,
the Guarantor and their Subsidiaries has fulfilled and performed
all of its obligations with respect to the Permits, and no event
has occurred that allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other
impairment of the rights of the holder or any such Permits, except
as would not, individually or in the aggregate, have a Material
Adverse Effect.
(hh) The
Company, the Guarantor and each of their Subsidiaries own or
possess adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names, trademark
registrations, service mark registrations, copyrights, licenses,
know-how, software, systems and technology (including trade secrets
and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the
conduct of their respective businesses and have no reason to
believe that the conduct of their respective businesses will
conflict with, and have not 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.
(ii) Neither
the Company, the Guarantor nor any of their Subsidiaries is in
violation of any statute, any rule, regulation, decision or order
of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or
toxic substances (understanding that any claims, laws or
regulations relating specifically to exposure to or consumer use of
tobacco products are excluded from the scope of this paragraph) or
relating to the protection or restoration of the environment or
human exposure to hazardous or toxic substances, owns or operates
any real property contaminated with any substance that is subject
to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to
any claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate be reasonably expected to have a Material Adverse Effect;
and the Company is not aware of any pending investigation which
might lead to such a claim.
(jj) None
of the Company, the Guarantor or any of their Subsidiaries, and, to
the knowledge of the Company, no director, officer, agent, employee
or other person associated with or acting on behalf of the Company,
the Guarantor or any of their Subsidiaries, has (i) used any
corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity;
(ii) made any direct or indirect unlawful payment to any
domestic government official or employee from corporate funds; or
(iii) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(kk) The
operations of the Company and its Subsidiaries are and have been
conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all applicable jurisdictions, the rules and
regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “ 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 its Subsidiaries with
respect to the Money Laundering Laws is pending or, to the
knowledge of the Company, threatened.
(ll) The
Company acknowledges that, in accordance with the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)), the underwriters are
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required to
obtain, verify and record information that identifies their
respective clients, including the Company, which information may
include the name and address of their respective clients, as well
as other information that will allow the underwriters to properly
identify their respective clients.
For purposes of
this Section 1, as well as for Section 6 hereof,
references to “the most recent Preliminary Prospectus and the
Prospectus” or “the Disclosure Package and the
Prospectus” are to each of the most recent Preliminary
Prospectus or the Disclosure Package, as the case may be, and the
Prospectus as separate or stand-alone documentation (and not the
most recent Preliminary Prospectus or the Disclosure Package, as
the case may be, and the Prospectus taken together), so that
representations, warranties, agreements, conditions and legal
opinions will be made, given or measured independently in respect
of each of the most recent Preliminary Prospectus or the Disclosure
Package, as the case may be, and the Prospectus.
2.
Purchase of the Notes by the Underwriters . Subject to the
terms and conditions and upon the basis of the representations and
warranties herein set forth, the Company agrees to issue and sell
to the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company, at a price equal to
99.35% of the principal amount thereof, plus accrued interest, if
any, from June 23, 2009, the principal amount of the Notes set
forth opposite such Underwriter’s name in Schedule I
hereto.
3.
Delivery of and Payment for Notes . Delivery of the Notes
will be made at the offices of Cahill Gordon & Reindel llp, or
at such place or places as mutually may be agreed upon by the
Company and the Underwriters, at or around 9:30 a.m., New York City
time, on June 23, 2009 or on such later date not more than
three Business Days after such date as may be determined by the
Representative and the Company (the “ Closing Date
”).
Delivery
of the Notes will be made to the Representative by or on behalf of
the Company against payment of the purchase price therefor by wire
transfer of immediately available funds. Delivery of the Notes will
be made through the facilities of The Depository Trust Company
unless the Representative will otherwise instruct. Delivery of the
Notes at the time and place specified in this Agreement is a
further condition to the obligations of each
Underwriter.
4.
Covenants of the Company and the Guarantor . The Company and
the Guarantor jointly and severally covenant and agree with each
Underwriter that:
(a) The
Company (i) will prepare the Prospectus in a form approved by
the Representative and file the Prospectus pursuant to Rule 424(b)
of the Rules and Regulations within the time period prescribed by
such Rule; (ii) will not file any amendment or supplement to
the Registration Statement or the Prospectus or file any document
under the Exchange Act before the termination of the offering of
the Notes by the Underwriters if such document would be deemed to
be incorporated by reference into the Prospectus, which filing is
not consented to by the Representative after reasonable notice
thereof (such consent not to be unreasonably withheld or delayed);
(iii) will advise the Representative, promptly after it
receives notice thereof, of the time when any amendment or
supplement to the Registration Statement, the most recent
Preliminary Prospectus or the Prospectus has been filed and will
furnish the Representative with copies thereof; (iv) will
prepare the Final Term Sheet, substantially in the form of
Schedule III hereto and approved by the Representative and
file the Final Term Sheet pursuant to Rule 433(d) of the Rules and
Regulations within the time period prescribed by such Rule;
(v) will advise the Representative promptly after it receives
notice thereof, of the issuance by the Commission or any state or
other regulatory body of any stop order or any order suspending the
effectiveness of the Registration Statement, suspending or
preventing the use of any Preliminary Prospectus, the Prospectus or
any Issuer Free Writing Prospectus or suspending the qualification
of the
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Notes for
offering or sale in any jurisdiction, of the initiation or
threatening of any proceedings for any such purpose or pursuant to
Section 8A of the Securities Act, of receipt by the Company
from the Commission of any notice of objection to the use of the
Registration Statement or any post-effective amendment thereto or
of any request by the Commission for the amending or supplementing
of the Registration Statement, the Prospectus or any Issuer Free
Writing Prospectus or for additional information; and
(vi) will use its best efforts to prevent the issuance of any
stop order or other such order or any such notice of objection and,
if a stop order or other such order is issued or any such notice of
objection is received, to obtain as soon as possible the lifting or
withdrawal thereof.
(b) The
Company will prepare and file with the Commission, promptly upon
the request of the Representative, any amendments or supplements to
the Registration Statement, the Disclosure Package or the
Prospectus which, in the opinion of the Representative, may be
necessary or advisable in connection with the offering of the
Notes.
(c) The
Company will furnish to each of the Representative and to counsel
for the Underwriters such number of conformed copies of the
Registration Statement, as originally filed and each amendment
thereto (excluding exhibits other than this Agreement), any
Preliminary Prospectus, the Final Term Sheet and any other Issuer
Free Writing Prospectus, the Prospectus and all amendments and
supplements to any of such documents (including any document filed
under the Exchange Act and deemed to be incorporated by reference
in the Registration Statement, any Preliminary Prospectus or the
Prospectus), in each case as soon as available and in such
quantities as the Representative may from time to time reasonably
request.
(d) During
the period in which the Prospectus relating to the Notes (or in
lieu thereof, the notice referred to in Rule 173(a) of the Rules
and Regulations) is required to be delivered under the Securities
Act, the Company will comply with all requirements imposed upon it
by the Securities Act and by the Rules and Regulations, as from
time to time in force, so far as is necessary to permit the
continuance of sales of or dealings in the Notes as contemplated by
the provisions of this Agreement and by the Prospectus. If during
such period any event occurs as a result of which the Disclosure
Package or the Prospectus as then amended or supplemented would
include an 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 then existing, not misleading, or if
during such period it is necessary to amend the Registration
Statement or amend or supplement the Disclosure Package or the
Prospectus or file any document to comply with the Securities Act,
the Company will promptly notify the Representative and will,
subject to Section 4(a) hereof, amend the Registration Statement,
amend or supplement the Disclosure Package or the Prospectus, as
the case may be, or file any document (in each case, at the expense
of the Company) so as to correct such statement or omission or to
effect such compliance, and will furnish without charge to each
Underwriter as many written and electronic copies of any such
amendment or supplement as the Representative may from time to time
reasonably request.
(e) As
soon as practicable, the Company will make generally available to
its security holders and the Underwriters an earnings statement
satisfying the requirements of Section 11(a) of the Securities Act
and Rule 158 of the Rules and Regulations.
(f) The
Company and the Guarantor agree, whether or not this Agreement is
terminated or the sale of the Notes to the Underwriters is
consummated, to pay all fees, expenses, costs and charges in
connection with: (i) the preparation, printing, filing,
registration, delivery and shipping of the Registration Statement
(including any exhibits thereto), any Preliminary Prospectus, any
Issuer Free Writing Prospectus, the Prospectus and any amendments
or supplements thereto; (ii) the printing, producing, copying
and delivering this Agreement, the Indenture, closing documents
(including any compilations thereof) and any other agreements,
memoranda, correspondence and other documents
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printed and
delivered in connection with the offering, purchase, sale and
delivery of the Notes; (iii) the services of the
Company’s independent registered public accounting firm;
(iv) the services of the Company’s counsel; (v) the
qualification of the Notes under the securities laws of the several
jurisdictions as provided in Section 4(l) hereof and the
preparation, printing and distribution of a Blue Sky Memorandum
(including the related fees and expenses of counsel to the
Underwriters); (vi) any rating of the Notes by rating
agencies; (vii) the services of the Trustee and any agent of
the Trustee (including the fees and disbursements of counsel for
the Trustee); (viii) any “road show” or other
investor presentations relating to the offering of the Notes
(including, without limitation, for meetings and travel);
(ix) the listing of the Notes on the New York Stock Exchange;
and (x) otherwise incident to the performance of its
obligations hereunder for which provision is not otherwise made in
this Section 4(f). It is understood, however, that, except as
provided in this Section 4(f) or Sections 7 and 9 hereof, the
Underwriters will pay all of their own costs and expenses,
including the fees and expen
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