EXHIBIT 1.1
LIMITED BRANDS, INC.
TERMS AGREEMENT
[Date]
Limited Brands, Inc.
Three Limited Parkway
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We (the "Representative") understand that Limited Brands, Inc., a Delaware
corporation (the "Company"), proposes to issue and sell to the underwriters
named in Schedule II hereto (the "Underwriters") (i) the principal amount of
its debt securities (the "Debt Securities"), if any, identified in Schedule I
hereto (the "Underwritten Debt Securities") and/or (ii) the warrants (the
"Warrants"), if any, identified in Schedule I hereto (the "Underwritten
Warrants") to purchase the aggregate principal amount of the debt securities
identified in Schedule I hereto (the "Warrant Securities"). If such Debt
Securities and Warrants are being issued together in units, such units are
referred to herein as the "Underwritten Units." The Underwritten Debt
Securities, if any, the Underwritten Warrants, if any, and the Underwritten
Units, if any, are hereinafter referred to as the "Underwritten Securities."
All the provisions contained in the document constituting Annex A hereto
entitled "Limited Brands, Inc. Debt Securities/Warrants to Purchase Debt
Securities -- Underwriting Agreement Basic Provisions" are incorporated herein
in their entirety and shall be deemed to be a part of this Terms Agreement to
the same extent as if such provisions had been set forth in full herein. Terms
defined in such document are used herein as therein defined.
Subject to the terms and conditions set forth herein or incorporated by
reference herein, the Underwriters offer to purchase, severally and not
jointly, at the respective purchase price set forth in Schedule I hereto, the
principal amount of the Underwritten Securities and/or the number of
Underwritten Warrants and/or the number of Underwritten Units set forth
opposite their respective names in Schedule II hereto.
If the firm or firms identified as Underwriters include only the firm or
firms identified as the Representative, then the terms Underwriters and
Representative shall each be deemed to refer to such firm or firms.
Please accept this offer by signing a copy of this Terms Agreement in the
space set forth below and returning the signed copy to us.
Very truly yours,
[Representative and Address for Notices]
By:
-------------------------------------
Name:
Title:
Acting severally and on behalf of itself and the several
Underwriters named on Schedule II hereto
Accepted:
LIMITED BRANDS, INC.
By:
------------------------
Name:
Title:
SCHEDULE I TO TERMS AGREEMENT
Description of Debt Securities:
Title:
Principal amount (including currency or composite currency): $
Interest Rate:
Purchase Price:
Offering Price:
Interest Payment Dates:
Optional Redemption:
Sinking Fund Provisions:
Delivery Date:
Description of Warrants:
Title of Warrants:
Number:
If Warrants are not to be purchased with Debt Securities as Units,
purchase price, currency, public offering price, if any, and underwriting
discount:
Warrant Agent:
Warrant Agreement:
Warrant exercise price and currency:
Principal amount (including currency or composite currency) of Warrant
Securities issuable upon exercise of one Warrant:
Date after which Warrants may be exercised:
Expiration date:
Other provisions:
Description of Underwritten Units:
Purchase price and currency:
Public offering price, if any, and underwriting discount:
Detachable date (if applicable):
Other provisions:
Description of Warrant Securities:
Title:
Principal amount (including currency or composite currency):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Delivery Date (including time) and location:
SCHEDULE II TO TERMS AGREEMENT
Principal Amount
of Underwritten Number of Underwritten Number of Underwritten
Securities Warrants to be Units to be Purchased
Underwriter to be Purchased Purchased (if any) (if any)
----------- --------------- ---------------------- -----------------------
$
=============== ====================== =======================
--------------- ---------------------- -----------------------
Total $
=============== ====================== =======================
ANNEX A TO TERMS AGREEMENT
LIMITED BRANDS, INC.
Debt Securities/Warrants to Purchase Debt Securities
UNDERWRITING AGREEMENT BASIC PROVISIONS
1. Introductory.
1.1. Offerings of Securities. The Company proposes to issue and sell
certain of its debt securities, issuable under an indenture dated as of March
15, 1988 (the "Indenture") between the Company and The Bank of New York, as
trustee (the "Trustee"), and/or certain of its warrants to purchase debt
securities issuable pursuant to the warrant agreement (the "Warrant Agreement")
identified in the Terms Agreement (as hereinafter defined) (such debt
securities and warrants being sometimes collectively referred to herein as the
"Securities"), in one or more offerings on terms determined at the time of
sale. Such debt securities and warrants may be issued separately or together in
units.
1.2. Terms Agreement. The terms with respect to the purchase of the
Underwritten Securities from the Company by the several Underwriters listed in
the applicable terms agreement, entered into between the Representative, on
behalf of such Underwriters, and the Company (the "Terms Agreement"), to which
these Underwriting Agreement Basic Provisions constitute Annex A, are set forth
in the Terms Agreement, which together with the provisions hereof incorporated
therein by reference, is sometimes herein referred to as this "Agreement."
Terms defined in the Terms Agreement are used herein as therein defined.
2. Representations, Warranties and Agreements of the Company. The Company
represents and warrants to and agrees with each Underwriter that:
2.1. Registration Statement. A registration statement (the "Initial
Registration Statement") on Form S-3 (File No. 333- ) with respect to the
Securities has been prepared by the Company in conformity with the requirements
of the Securities Act of 1933 (the "Act"), and the rules and regulations (the
"Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, has been filed with the Commission and has become
effective. No stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or any
registration statement increasing the size of the offering (a "Rule 462(b)
Registration Statement"), pursuant to Rule 462(b) under the Act, which became
or will become effective upon filing has been issued and, to the Company's
knowledge, no proceeding for that purpose has been initiated or threatened by
the Commission. As used in this Agreement (i) "Registration Statement" means
the Initial Registration Statement and any Rule 462(b) Registration Statement,
including all exhibits thereto and all documents incorporated therein by
reference; (ii) "Basic Prospectus" means the prospectus and all documents
incorporated therein by reference included in the Initial Registration
Statement; and (iii) "Prospectus" means the Basic Prospectus, together with any
amendments or supplements thereto and, in each case, all documents incorporated
therein by reference specifically relating to the Underwritten Securities, as
filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations.
2.2. Compliance with Applicable Law. The Registration Statement and
the Prospectus comply, and (in the case of any amendment or supplement to any
such document, or any material incorporated by reference in any such document
filed with the Commission after the date as of which this representation is
being made) will comply at all times during the period specified in subsection
7.3 hereof, with the provisions of the Act, the Rules and Regulations, the
Securities Exchange Act of 1934 (the "Exchange Act") and the rules and
regulations of the Commission thereunder. The Indenture, including any
amendments and supplements thereto, pursuant to which the Underwritten
Securities will be issued will conform with the requirements of the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the rules
and regulations of the Commission thereunder. The Registration Statement does
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, and the Prospectus does not, and (in the case of
any amendment or supplement thereto, or any material incorporated by reference
in any such document filed with the Commission after the date as of which this
representation is being made) will not at any time during the period specified
in subsection 7.3 hereof, contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading. The
Company makes no representation or warranty as to (a) that part of the
Registration Statement which constitutes the Statement of Eligibility and
Qualification under the Trust Indenture Act (Form T-1) of the Trustee or (b)
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with information furnished in
writing to the Company through the Representative by or on behalf of any
Underwriter specifically for inclusion therein.
2.3. Compliance with Reporting Requirements. The Company is subject to
and in full compliance with the reporting requirements of Section 13 or Section
15(d) of the Exchange Act.
2.4. Stabilization or Manipulation of Price. The Company has not
taken, directly or indirectly, any action designed to cause or which has
constituted or which might reasonably be expected to cause or result in, under
the Exchange Act or otherwise, the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Underwritten Securities.
2.5. Duly Incorporated and Validly Existing; Power and Authority. Each
of the Company and its Significant Subsidiaries (as defined in Rule 1-02 of
Regulation S-X under the Act) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction
in which it is chartered or organized with full corporate power and authority
to own or lease, as the case may be, and to operate its properties and conduct
its business as described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the laws of
each jurisdiction which requires such qualification, except, in each case, to
the extent that the failure to qualify or be in good standing would not have a
material adverse effect on the financial condition or results of operations of
the Company and its subsidiaries, taken as a whole. There are no Significant
Subsidiaries of the Company as defined in Rule 1-02 of Regulation S-X under the
Act that are not listed on Exhibit A attached hereto.
2.6. Capital Stock. All the outstanding shares of capital stock of the
Company and each Significant Subsidiary have been duly and validly authorized
and issued and are fully paid and nonassessable, and, except as otherwise set
forth in the Prospectus, all outstanding shares of capital stock of the
Significant Subsidiaries are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security interest or
any other security interests, claims, liens, encumbrances, charges,
restrictions upon voting or transfer or any other claim of any third party,
except for any such security interests, claims, liens, encumbrances, charges
and restrictions that would not have a material adverse effect on the financial
condition or results of operations of the Company and its subsidiaries, taken
as a whole.
2.7. Prospectus Summary Statements. The statements in the Prospectus
under the headings "Use of Proceeds" and "Description of the Notes" fairly
summarize the matters therein described.
2.8. Authorization, Execution and Delivery. This Terms Agreement has
been duly authorized, executed and delivered by the Company. If Debt Securities
are to be issued, the Indenture has been duly authorized, executed and
delivered by the Company and qualified under the Trust Indenture Act and,
assuming the due authorization, execution and delivery thereof by the Trustee,
constitutes the legal, valid, binding instrument enforceable against the
Company in accordance with its terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to time in effect
and to general principles of equity). If Debt Warrants are to be issued, the
Debt Warrant Agreement has been duly authorized, executed and delivered by the
Company and, assuming the due authorization, execution and delivery thereof by
the debt warrant agent named therein (the "Debt Warrant Agent"), constitutes
the legal, valid, binding instrument enforceable against the Company in
accordance with its terms (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect and to
general principles of equity). The Underwritten Securities have been duly
authorized, and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Underwriters,
will have been duly executed and delivered by the Company and will constitute
the legal, valid and binding obligations of the Company entitled to the
benefits of the
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Indenture (subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity).
2.9. No Conflicts. Neither the execution and delivery of the Indenture
or the Terms Agreement, the issue and sale of the Underwritten Securities, the
consummation of any other of the transactions herein or therein contemplated,
nor the fulfillment of the terms hereof or thereof will conflict with, result
in a breach or violation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its Significant Subsidiaries
pursuant to, (i) the charter or by-laws of the Company or any of its
Significant Subsidiaries; (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company or any of
its Significant Subsidiaries is a party or bound or to which its or their
property is subject, except, in each case, for conflicts, breaches, violations
and liens that would not have a material adverse effect on the financial
condition or results of operations of the Company and its subsidiaries, taken
as a whole; or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its Significant Subsidiaries of any
court, regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or any of its Significant
Subsidiaries or any of its or their properties except, in each case, for
conflicts, breaches, violations and liens that would not have a material
adverse effect on the financial condition or results of operations of the
Company and its subsidiaries, taken as a whole.
2.10. Financial Statements. The consolidated historical financial
statements and schedules of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration Statement and the
Prospectus present fairly in all material respects the financial condition,
results of operations and cash flows of the Company as of the dates and for the
periods indicated, comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved (except as otherwise noted therein).
2.11. Forward-looking Statements. No forward-looking statement (within
the meaning of Section 27A of the Act and Section 21E of the Exchange Act)
contained in the Prospectus has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.
2.12. No Material Adverse Change. Since the dates as of which
information is given in the Prospectus, except as otherwise stated therein, (i)
there has been no material adverse change in the condition (financial or
otherwise), prospects, earnings, business, management or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business, (ii) none of the Company nor any Significant
Subsidiary has incurred any material liability or obligation, direct or
contingent, other than in the ordinary course of business, and (iii) there has
not been any material decrease in the capital stock or material increase in the
long-term debt of the Company, or any dividend or distribution of any kind
declared, paid or made by the Company on any class of their respective capital
stock other than quarterly cash dividends consistent with past practice.
Any certificate signed by any officer of the Company and delivered to
the Representative or counsel for the Representative in connection with the
offering of the Underwritten Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each Underwriter.
3. Purchase of the Underwritten Securities.
3.1. Effect of Terms Agreement. The obligation of the Underwriters to
purchase, and the Company to sell, the Underwritten Securities is evidenced by
a Terms Agreement delivered at the time the Company determines to sell the
Underwritten Securities. The Terms Agreement specifies the firm or firms which
will be the Underwriters, the principal amount or number of the Underwritten
Securities to be purchased by each Underwriter, the purchase price or prices to
be paid by the Underwriters for the Underwritten Securities, the public
offering price, if any, of the Underwritten Securities, the Underwriters'
compensation therefor and any terms of the Underwritten Securities not already
specified in the Indenture or the Warrant Agreement, as the case may be. The
Terms Agreement specifies any details of the terms of the offering which should
be reflected in the supplement to the Basic Prospectus relating to the offering
of the Underwritten Securities.
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3.2. Obligation to Purchase Several, Not Joint. It is understood that,
in making this Agreement, the Underwriters are contracting severally and not
jointly, and that their several agreements to purchase the Underwritten
Securities on the basis of the agreements and representations herein contained
shall be several and not joint and shall apply only to the respective principal
amounts or number of the Underwritten Securities to be purchased by them as
provided herein.
4. Delivery of the Underwritten Securities. The Company shall not be
obligated to deliver any Underwritten Securities except upon payment for all
Underwritten Securities to be purchased pursuant to this Agreement as
hereinafter provided.
5. Default in Performance by Underwriter.
5.1. Obligations of Non-Defaulting Underwriters. If any Underwriter
defaults in the performance of its obligations under this Agreement, the
remaining non-defaulting Underwriters shall be obligated severally to purchase
the Underwritten Securities which the defaulting Underwriter agreed but failed
to purchase in the respective proportions which the principal amount of
Underwritten Securities set forth in the applicable column in Schedule II to
the Terms Agreement to be purchased by each remaining non-defaulting
Underwriter set forth in such column bears to the aggregate principal amount or
number of Underwritten Securities set forth in such column to be purchased by
all the remaining non-defaulting Underwriters; provided that the remaining
non-defaulting Underwriters shall not be obligated to purchase any Underwritten
Securities that constitute Underwritten Securities if the aggregate principal
amount or number of such Underwritten Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase exceeds 10% of the
total principal amount of such Underwritten Securities. If the foregoing
maximum is exceeded, the remaining non-defaulting Underwriters, or other
underwriters satisfactory to the Representative, shall have the right, but
shall not be obligated, to purchase, in such proportion as may be agreed upon
among them, all the Underwritten Securities.
5.2. Termination of Agreement. If the remaining non-defaulting
Underwriters or other underwriters satisfactory to the Representative do not
elect pursuant to the last sentence of subsection 5.1 to purchase the aggregate
principal amount or number of Underwritten Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase that exceeds 10% of
the total principal amount of such Underwritten Securities, this Agreement with
respect to such Underwritten Securities shall terminate without liability on
the part of any non-defaulting Underwriter or the Company.
5.3. Liability of Defaulting Underwriter. Nothing contained in this
Section 5 shall relieve a defaulting Underwriter of any liability it may have
to the Company and any non-defaulting Underwriter for damages caused by its
default. If other underwriters are obligated or agree to purchase the
Underwritten Securities of a defaulting Underwriter, either the Representative
or the Company may postpone the Delivery Date for up to five full business days
in order to effect any changes that the Underwriters shall determine may be
necessary in the Registration Statement, the Prospectus or in any other
document or arrangement.
6. Delivery and Payment.
6.1. Date and Time of Delivery. Delivery of and payment for the
Underwritten Securities shall be made at such location as may be agreed upon by
the Representative and the Company (as set forth in Schedule I to the Terms
Agreement) at 10:00 A.M., New York City time, on the fifth business day
following the date of the Terms Agreement, or at such other time and date as
shall be agreed upon, or as provided in Section 5.3. This date and time are
sometimes referred to as the "Delivery Date".
6.2. Payment. On the Delivery Date, the Company shall deliver the
Underwritten Securities to the Representative for the account of each
Underwriter against payment to or upon the order of the Company of the purchase
price by wire transfer payable in same-day funds, to the account specified by
the Company.
6.3. Form. Delivery of the Underwritten Securities shall be made
either at such location as the Representative shall reasonably designate at
least one business day in advance of
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the Delivery Date or through the facilities of The Depository Trust Company.
Certificates for the Underwritten Securities shall be registered in such names
and in such denominations as the Representative may request not less than two
business days in advance of the Delivery Date. The Company agrees to have the
Underwritten Securities available for inspection, checking and packaging by the
Representative in New York, New York, not later than 1:00 PM on the business
day prior to the Delivery Date.
7. Further Agreements of the Company. The Company further agrees:
7.1 Registration Statement; Prospectus. To prepare the Prospectus in a
form approved by the Representative and to file such Prospectus pursuant to
Rule 424(b) under the Act and to prepare and file any Rule 462(b) Registration
Statement in each case within the time periods required by the Act and the
Rules and Regulations. To furnish promptly to the Representative and to counsel
for the Underwriters a signed copy of the Registration Statement as originally
filed and a copy of each amendment thereto (in each case together with all
exhibits filed therewith) filed prior to the date of the Terms Agreement or
relating to or covering the Underwritten Securities, and a copy of the
Prospectus filed with the Commission.
7.2 Other Documents. To deliver promptly to the Representative,
without charge, such number of the following documents as the Representative
may request: (a) conformed copies of the Registration Statement (including
exhibits), (b) the Prospectus and (c) any documents incorporated by reference
in the Prospectus, and the Company authorizes the Underwriters and all dealers
to whom any Underwritten Securities may be offered or sold by the Underwriters
to use such documents in connection with the sale of the Underwritten
Securities in accordance with the applicable provisions of the Act and the
Rules and Regulations.
7.3 Supplemental Information. During such period following the date of
the Terms Agreement as, in the opinion of counsel for the Underwriters, a
prospectus is required by law to be delivered, the Company will furnish copies
of (a) any amendment to the Registration Statement; (b) the Prospectus or any
amendment or supplement thereto, or (c) any document incorporated by reference
in any of the foregoing or any amendment or supplement to any such incorporated
document to the Representative and to counsel for the Underwriters prior to
filing any of such items with the Commission and will not file any such item to
which the Representative shall reasonably object; provided that, despite any
such objection but after consultation with the Representative, including the
furnishing to the Representative of drafts thereof, the Company may file any
report or statement which in the written opinion of its counsel it is required
to file pursuant to the Exchange Act. The Company will file promptly all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of the Underwritten Securities.
7.4 Duty to Notify of Certain Events. To advise the Representative
promptly (a) when any post-effective amendment to the Registration Statement
relating to or covering the Underwritten Securities becomes effective, (b) of
any request or proposed request by the Commission for an amendment or
supplement (insofar as the amendment or supplement relates to or covers the
Underwritten Securities) to the Registration Statement, to any Rule 462(b)
Registration Statement, to the Prospectus, to any document incorporated by
reference in any of the foregoing or for any additional information relating to
the Registration Statement or the Prospectus (insofar as such information
relates to or covers the Underwritten Securities), (c) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or any order directed to the Prospectus or any document incorporated
therein by reference or the initiation of any stop order proceeding or of any
challenge to the accuracy or adequacy of any document incorporated by reference
in the Prospectus, and (d) of receipt by the Company of any notification with
respect to the suspension of the qualification of the Underwritten Securities
for sale in any jurisdiction or the initiation of any proceeding for that
purpose. If at any time during the period referred to in Section 7.3 above that
the Prospectus relating to the Underwritten Securities is required to be
delivered under the Act, any event occurs as a result of which the Prospectus
as then amended or supplemented would include any untrue statement of material
fact or omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend or supplement the Prospectus
to comply with the Act, the Rules and Regulations, the Exchange Act or the
rules and regulations of the Commission thereunder, the Company (i) will notify
the Representative of any such event, (ii) promptly will prepare and file with
the Commission, subject to Section 7.3, an amendment or supplement which will
correct such statement or omission or an amendment or supplement which will
effect such compliance and
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(iii) will supply any supplemented or amended prospectus to the several
Underwriters and counsel for the Underwriters without charge in such quantities
as they may reasonably request.
7.5 Stop Orders; Action Required. If, during the period referred to in
Section 7.3 above, the Commission shall issue a stop order suspending the
effectiveness of the Registration Statement during a time the Prospectus
relating to the Underwritten Securities is required to be delivered under the
Act, to make every reasonable effort to obtain the lifting of that order at the
earliest possible time.
7.6 Earnings Statement. As soon as practicable, or in accordance with
Rule 158 of the Rules and Regulations, to make generally available to its
security holders and to the Representative an earnings statement (which need
not be audited) of the Company and its consolidated subsidiaries, which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder.
7.7 Further Assurances. Arrange, if necessary, for the qualification
of the Underwritten Securities for sale under the laws of such jurisdictions as
the Representative may reasonably designate and pay all expenses (including
reasonable fees and disbursements of counsel) in connection with such
qualification, to maintain such qualifications in effect during the period
referred to in Section 7.3 above and to arrange for the determination of the
legality of the Underwritten Securities for purchase by institutional
investors; provided, however, that the Company shall not be required to qualify
to do business in any jurisdiction where it is not so qualified at the date of
the Terms Agreement or to take any action which would subject it to general or
unlimited service of process in suits, other than those arising out of the
offering or sale of the Underwritten Securities, or to the imposition of any
taxes based on, or measured by, all or any part of the income of the Company in
any jurisdiction where it is not at such date so subject. The Company will
promptly advise the Representative of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Underwritten Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
7.8 Failure to Perform. If the sale of the Underwritten Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 10 hereof is not satisfied or because
of any termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, to reimburse the Underwriters severally through either of the
Representative upon demand for all out-of-pocket expenses (including the
reasonable fees and disbursements of counsel for the Underwriters) that shall
have been reasonably incurred by them in connection with the proposed purchase
and sale of the Underwritten Securities.
7.9 No Announcements. The Company will not, for the period of time
following the date and time that this Agreement is executed and delivered by
the parties hereto (the "Execution Time") until the Delivery Date, without the
prior written consent of the Representative, offer, sell or contract to sell,
or otherwise dispose of (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any person in privity with the Company), directly
or indirectly, or announce the offering of, any debt securities issued or
guaranteed by the Company (other than the Underwritten Securities).
8. Indemnification.
8.1 Indemnification by the Company. The Company shall indemnify and
hold harmless each Underwriter, the directors and officers of each Underwriter
and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act from and against any and all losses, claims, damages or
liabilities, joint or several, and any action in respect thereof, to which they
or any of them may become subject, under the Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities (or actions in respect
thereof) arise out of, or are based upon, any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus or arises out of, or is based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and shall reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending against any
such loss, claim,
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damage, liability or action; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any such untrue statement
or alleged untrue statement or omission or alleged omission (a) made in the
Registration Statement or 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 or (b)
contained in that part of the Registration Statement constituting the Statement
of Eligibility and Qualification under the Trust Indenture Act (Form T-1) of
the Trustee; provided further, that the Company will not be liable for the
amount of any settlement of any claim made without its consent, such consent
not to be unreasonably withheld. The foregoing indemnity agreement is in
addition to and not in limitation or duplication of any liability or right
which the Company may otherwise have to an Underwriter or any person who
controls an Underwriter.
8.2 Indemnification by the Underwriters. Each Underwriter agrees
severally and not jointly to indemnify and hold harmless the Company, each of
its directors, each of its officers and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter as set forth in
subsection 8.1 above, but only with reference to written information furnished
to the Company through the Representative by or on behalf of that Underwriter
specifically for inclusion in the documents referred to in the foregoing
indemnity. The foregoing indemnity agreement is in addition to and not in
limitation or duplication of any liability which any Underwriter may otherwise
have to the Company or any of its directors, officers or controlling persons.
8.3 Notice of Claim or Action. Promptly after receipt by an
indemnified party under subsection 8.1 or 8.2 above of notice of the
commencement of any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement of that action,
but the failure so to notify the indemnifying party (i) will not relieve it
from liability under Sections 8.1 and 8.2 above unless such failure results in
the forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in Sections 8.1 and 8.2 above. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
one such separate counsel (in addition to local counsel) for such indemnified
party if (i) the use of counsel chosen by the indemnifying party to represent
the indemnified party would present such counsel with a conflict of interest;
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action; or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit or
proceeding.
8.4 Contribution. In the event that the indemnity provided in Sections
8.1 or 8.2 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriters agree to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
same) (collectively "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the
7
Underwritten Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among the Underwriters
relating to the offering of the Underwritten Securities) be responsible for any
amount in excess of the purchase discount or commission applicable to the
Underwritten Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for
any reason, the Company and the Underwriters shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and of the Underwriters
on the other in connection with the statements or omissions which resulted in
such Losses, as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses) received by it, and benefits
received by the Underwriters shall be deemed to be equal to the total purchase
discounts and commissions in each case set forth on the cover of the
Prospectus. Relative fault shall be determined by reference to, among other
things, whether any untrue or any alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information provided by the Company on the one hand or the Underwriters on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph, no person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 8, each person who controls an Underwriter within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent of
an Underwriter shall have the same rights to contribution as such Underwriter,
and each person who controls the Company within the meaning of either the Act
or the Exchange Act and each officer and director of the Company shall have the
same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph.
9. Termination of Underwriter Obligations. The obligations of the
Underwriters under this Agreement may be terminated by the Representative, in
their absolute discretion, by notice given to and received by the Company prior
to delivery of and payment for the Underwritten Securities, if, during the
period beginning on the date of the Terms Agreement to and including the
Delivery Date, (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange; (ii)
a banking moratorium shall have been declared either by Federal or New York
State authorities; or (iii) there shall have occurred any outbreak or material
escalation of hostilities or acts of terrorism or declaration by the United
States of a national emergency or war or other calamity or crisis or any change
in financial, political or economic conditions in the United States or
elsewhere the effect of which on the financial markets of the United States and
Europe is such as to make it, in the judgment of the Representative,
impracticable or inadvisable to proceed with the offering or delivery of the
Underwritten Securities as contemplated by the Prospectus (exclusive of any
amendment or supplement thereto).
10. Additional Conditions to the Respective Obligations of the
Underwriters.
10.1 Accuracy of Representations and Warranties. The respective
obligations of the Underwriters under this Agreement with respect to the
Underwritten Securities are subject to the accuracy, on the date of the Terms
Agreement and on the Delivery Date, of the representations and warranties of
the Company contained herein, to the accuracy of the statements of the Company
made in any certificates pursuant to the provisions hereof, to performance by
the Company of its obligations hereunder, and to each of the following
additional terms and conditions applicable to the Underwritten Securities:
10.1.1 At or before the Delivery Date, no stop order
suspending the effectiveness of the Registration Statement or any order
directed to any document incorporated by reference in the Prospectus shall have
been issued and remain in effect and no proceeding for that purpose shall be
pending or, to the knowledge of the Company or the Representative, threatened
by the Commission.
10.1.2 The Company shall have requested and caused its
General Counsel, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., to furnish to the Representative his
opinion, dated the Delivery Date and addressed to the Representative, to the
effect that:
8
(a) each of the Company and its Significant Subsidiaries
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction
in which it is chartered or organized, with full corporate power
and authority to own or lease, as the case may be, and to operate
its properties and conduct its business as described in the
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification, except, in each
case, to the extent that the failure to qualify or be in good
standing would not have a material adverse effect on the
financial condition or results of operations of the Company and
its subsidiaries, taken as a whole;
(b) other than as set forth or contemplated in the
Prospectus, such counsel does not know of any legal or
governmental proceedings pending to which the Company or any of
its subsidiaries is a party or to which any property of the
Company or any of its subsidiaries is subject where there is a
material risk that such proceeding will be determined adversely
to the Company or any of its subsidiaries and which, if so
determined, individually or in the aggregate, is expected to have
a material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of the Company and
its subsidiaries, considered as a whole, and to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(c) this Agreement has been duly authorized, executed and
delivered by the Company;
(d) no consent, approval, authorization, filing with or
order of any court or governmental authority or agency or
regulatory body is required in connection with the transactions
contemplated herein or in the Indenture, except such as will be
obtained under the Act and the Trust Indenture Act and such as
may be required under the blue sky or securities laws of any
jurisdiction in connection with the purchase and sale of the
Underwritten Securities by the Underwriters in the manner
contemplated in this Agreement and the Prospectus and such other
approvals (specified in such opinion) as have been obtained;
(e) neither the execution and delivery of this Agreement,
the issue and sale of the Securities, the consummation of any
other of the transactions herein or therein contemplated, nor the
fulfillment of the terms hereof or thereof will conflict with,
result in a breach or violation of, or imposition of any lien,
charge or encumbrance upon any property or asset of the Company
or its Significant Subsidiaries pursuant to, (i) the charter or
by-laws of the Company or its Significant Subsidiaries; (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument known to such counsel to which
the Company or any of its Significant Subsidiaries is a party or
bound or to which its respective property is subject, except, in
each case, for conflicts, breaches, violations and liens that
would not have a material adverse effect on the financial
condition or results of operations of the Company and its
subsidiaries, taken as a whole; or (iii) any statute, law, rule,
regulation, judgment, order or decree known to such counsel
applicable to the Company or any of its Significant Subsidiaries
of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Company, any of its Significant
Subsidiaries or any of their respective properties, except, in
each case, for conflicts, breaches, violations and liens that
would not have a material adverse effect on the financial
condition or results of operations of the Company and its
subsidiaries, taken as a whole; and
(f) the Company is not and, after giving effect to the
offering and sale of the Underwritten Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be required to register as an "investment
company" under the Investment Company Act of 1940, as amended.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
jurisdiction of incorporation of the Company, the Delaware General Corporation
Law, the State of Ohio or the Federal laws of the United States, to the extent
it deems proper and specified in such opinion, upon the opinion of other
counsel of good standing whom it believes to be reliable and who are
satisfactory to
9
counsel for the Underwriters; and (B) as to matters of fact, to the extent it
deems proper, on certificates of responsible officers of the Company and public
officials.
In addition, such counsel shall advise by letter, based on such counsel's
participation in the preparation of the Registration Statement and Prospectus
(but without independent check or verification of the contents thereof except
as specified therein), that such counsel has no reason to believe that the
Registration Statement (except the financial statements and other financial and
statistical data included or incorporated by reference therein, as to which
such counsel need express no view), at the Execution Time or on the Delivery
Date, contained or contains any untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus (except as
aforesaid), at the Execution Time or on the Delivery Date, contained or
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
10.1.3. The Company shall have requested and caused ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company, to furnish to the Representative its
opinion, dated the Delivery Date and addressed to the Representative, to the
effect that:
(a) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
corporate power and authority to own or lease, as the case may
be, and to operate its properties and conduct its business as
described in the Prospectus;
(b) if Debt Securities are to be issued, the Indenture
has been duly authorized, executed and delivered by the Company
and qualified under the Trust Indenture Act and, assuming the due
authorization, execution and delivery thereof by the Trustee,
constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (subject, as to
the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to
general principles of equity); the Underwritten Securities have
been duly and validly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters under this
Agreement, will constitute legal, valid and binding obligations
of the Company entitled to the benefits of the Indenture
(subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect
and to general principles of equity); if Debt Warrants are to be
issued, the Debt Warrant Agreement has been duly authorized,
executed and delivered by the Company and, assuming the due
authorization, execution and delivery thereof by the Debt Warrant
Agent constitutes the legal, valid, binding instrument
enforceable against the Company in accordance with its terms
(subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect
and to general principles of equity); and the statements set
forth under the heading "Description of the Debt Securities" (if
Debt Securities are to be issued) and "Description of the Debt
Warrants" (if Debt Warrants are to be issued) in the Prospectus
and the related heading in the relevant prospectus supplement,
insofar as such statements purport to summarize certain
provisions of the Securities, the Indenture and the Debt Warrant
Agreement, provide a fair summary of such provisions;
(c) this Agreement has been duly authorized, executed and
delivered by the Company;
(d) no consent, approval, authorization, filing with or
order of any court or governmental authority or agency or
regulatory body is required in connection with the transactions
contemplated herein or in the Indenture, except such as will be
obtained under the Act and the Trust Indenture Act and such as
may be required under the blue sky or securities laws of any
jurisdiction in connection with the purchase and sale of the
Underwritten Securities by the Underwriters in the manner
contemplated in this Agreement and the Registration Statement and
the Prospectus and such other approvals (specified in such
opinion) as have been obtained;
10
(e) the Company is not and, after giving effect to the
offering and sale of the Underwritten Securities and the
application of the proceeds thereof as described in the
Registration Statement and the Prospectus, will not be required
to register as an "investment company" under the Investment
Company Act of 1940, as amended; and
(f) The Registration Statement is effective under the
Act, any required filing of the Prospectus and any supplement
thereto pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b) and, to the best
knowledge of such counsel, no stop order with respect thereto has
been issued, or proceeding for that purpose has been instituted
or threatened, by the Commission.
In rendering such opinion, such counsel may (A) rely as to matters
involving the application of laws of any jurisdiction other than the
jurisdiction of incorporation of the Company, the State of New York or the
Federal laws of the United States, to the extent it deems proper and specified
in such opinion, upon the opinion of other counsel of good standing whom it
believes to be reliable and who are satisfactory to counsel for the
Underwriters; and (B) rely, as to matters of fact, to the extent it deems
proper, on certificates of responsible officers of the Company and public
officials.
In addition, such counsel shall advise by letter, based on such counsel's
participation in the preparation of the Registration Statement and the
Prospectus (but without independent check or verification of the contents
thereof except as specified therein), that:
(i) The Registration Statement, as of its effective date,
and the Prospectus, as of the date of the supplement to the Basic
Prospectus (in each case, except for the documents incorporated
by reference therein, the financial statements and other
financial and statistical data included or incorporated by
reference therein, as to which such counsel need express no view)
appeared on their face to be appropriately responsive in all
material respects to the requirements of the Act and the Rules
and Regulations; and
(ii) such counsel has no reason to believe that the
Registration Statement (except for the financial statements and
other financial and statistical data included or incorporated by
reference therein, as to which such counsel need express no
view), at the Execution Time or on the Delivery Date, contained
or contains any untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that
the Prospectus (except as aforesaid), at the Execution Time or on
the Delivery Date, contained or contains any untrue statement of
a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
10.1.4. At the Delivery Date, the Company shall have
requested and caused PricewaterhouseCoopers LLP or other nationally recognized
firm of certified public accountants or registered public accounting firm to
furnish to the Representative a letter, dated as of the Delivery Date in form
and substance satisfactory to the Representative, confirming that they are
independent accountants within the meaning of the Act and the Exchange Act and
the applicable rules and regulations thereunder and containing statements and
information of the type ordinarily included in accountants' "comfort letters"
with respect to the consolidated financial statements of the Company and
certain financial information contained in the Prospectus and the Registration
Statement (including information incorporated in each such Prospectus and the
Registration Statement by reference).
10.1.5. The Representative shall have received, on the
Delivery Date, from counsel for the Underwriters, such opinion or opinions,
dated the Delivery Date, with respect to the issuance and sale of the
Underwritten Securities, the Indenture, the Registration Statement, the
Prospectus and other related matters as the Representative may reasonably
require, and the Company shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to pass upon such
matters.
10.1.6 The Company shall have furnished to the
Representative, on the Delivery Date, a certificate of the Company, signed by
an Executive Vice President, the Chief Financial Officer, or the Vice
11
President-Treasury, Mergers and Acquisitions or any other officer reasonably
satisfactory to the Representative, dated the Delivery Date, to the effect that
the signers of such certificate have carefully examined the Registration
Statement, the Prospectus and this Agreement and that:
(i) The representations and warranties of the Company in
this Agreement are true and correct in all material respects on
and as of the Delivery Date with the same effect as if made on
the Delivery Date and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Delivery Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and remains in effect and
no proceedings for that purpose are pending or, to the knowledge
of each such person, threatened by the Commission, and no order
directed to any document incorporated by reference in the
Prospectus has been issued and remains in effect or, to the
knowledge of each such person, is threatened to be issued by the
Commission; and
(iii) Since the date of the most recent financial
statements included or incorporated by reference in the
Prospectus, there has been no material adverse change in the
condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus.
10.2. The Underwritten Securities shall be eligible for clearance and
settlement through The Depository Trust Company.
10.3. Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended or
potential decrease in any such rating or any notice that the rating of the
Company's debt securities is under surveillance or review.
10.4. The Indenture shall have been duly executed and delivered by the
Company and the Trustee, and the Underwritten Securities shall have been duly
executed and delivered by the Company and duly authenticated by the Trustee.
10.5. No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental agency
or body which would, as of the Delivery Date, prevent the issuance or sale of
the Underwritten Securities; and no injunction, restraining order or order of
any other nature by any federal or state court of competent jurisdiction shall
have been issued as of the Delivery Date which would prevent the issuance or
sale of the Underwritten Securities.
10.6. Prior to the Delivery Date, the Company shall have furnished to
the Representative such further information, certificates and documents as the
Representative may reasonably request.
If any of the conditions specified in this Section 10 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or
if any of the opinions, letters and certificates mentioned above or elsewhere
in this Agreement shall not be in all material respects reasonably satisfactory
in form and substance to the Representative and counsel for the Underwriters,
this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Delivery Date by the Representative.
Notice of such cancellation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 10 will be
delivered at the office of counsel for the Underwriters, at ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Delivery Date.
11. Survival of Representations and Indemnification. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or the Company or any
of the officers, directors or controlling persons referred to in Section 8
12
hereof, and will survive delivery of and payment for the Securities. The
provisions of subsection 7.8 and Section 8 hereof shall survive the termination
or cancellation of this Agreement.
12. Payment of Expenses. Whether or not the transactions contemplated by
this Agreement are consummated or this Agreement is terminated, the Company
will pay or cause to be paid all costs and expenses incident to the performance
of its obligations hereunder, including without limitation, (a) the costs
incident to the authorization, issuance, sale, preparation and delivery of the
Underwritten Securities and any taxes payable in that connection; (b) the costs
incident to the preparation, printing and filing under the Act of the
Registration Statement and the Prospectus (including all exhibits, amendments
and supplements thereto) and the distribution thereof; (c) the costs of
reproducing and distributing the Terms Agreement and the Underwritten
Securities; (d) the fees and expenses of the Company's counsel and independent
accountants; (e) the fees and expenses incurred in connection with the
registration or qualification and determination of eligibility for investment
of the Underwritten Securities under the laws of such jurisdictions as the
Representative may designate and the preparation, printing and distribution of
a Blue Sky Memorandum (including the related fees and expenses of counsel for
the Underwriters up to a maximum of $5,000); (f) any fees charged by rating
agencies for rating the Underwritten Securities; (g) the fees and expenses of
the Trustee and any paying agent (including related fees and expenses of any
counsel to such parties); and (h) all expenses and application fees incurred in
connection with any filing with, and clearance of any offering by, the National
Association of Securities Dealers, Inc. up to a maximum of $10,000. It is
understood, however, that, except as provided in this Section, and Sections 7.8
and 8.1 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Underwritten Securities by them, and any advertising expenses connected with
any offers they may make.
13. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriters, will be mailed, delivered or
telefaxed to the Representative named in the Terms Agreement at the address or
telefax number there set forth; or, if sent to the Company, will be mailed,
delivered or telefaxed to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Senior Vice President, General
Counsel and Secretary of Limited Brands (telefax no. (▇▇▇) ▇▇▇-▇▇▇▇), and
confirmed to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Senior Vice President, General Counsel and
Secretary of Limited Brands, Inc. at Three Limited Parkway, ▇.▇. ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention of the Legal Department, with a copy to ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telefax (212)
450-3800, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇.
14. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
16. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
13
