EXHIBIT 1.1
TOYS "R" US, INC.
DEBT SECURITIES
FORM OF UNDERWRITING AGREEMENT
_____, 2003
[________]
[________]
As Representatives of the Several Underwriters
[________]
Dear Sirs:
1. Introductory. Toys "R" Us Inc., a Delaware corporation (the
"Company"), proposes to issue and sell up to $800,000,000 aggregate initial
public offering price of its debt securities (the "Securities"), from time to
time, in or pursuant to one or more offerings on terms to be determined at the
time of sale.
The Securities will be issued in one or more series as senior unsecured
indebtedness under an Indenture (the "Indenture") dated as of May 28, 2002
between the Company and The Bank of New York, as Trustee (the "Trustee"). Each
series of Securities may vary, as applicable, as to title, aggregate principal
amount, ranking, interest rate or formula and timing of payments thereof, stated
maturity date, redemption and/or repayment provisions, sinking fund
requirements, conversion provisions and any other terms and conditions
established by or pursuant to the Indenture.
Whenever the Company determines to make an offering of Securities
through [_________] (together, the "Representatives"), or through an
underwriting syndicate managed by the Representatives, the Company will enter
into an agreement (each, a "Terms Agreement") providing for the sale of such
Securities to, and the purchase and offering thereof by, the Representatives and
such other underwriters, if any, selected by the Representatives (the
"Underwriters," which term shall include the Representatives, whether acting as
the only Underwriters or as members of an underwriting syndicate, as well as any
Underwriter substituted pursuant to Section 8 hereof). The Terms Agreement
relating to the offering of Securities shall specify the aggregate principal
amount of Securities to be initially issued (the "Underwritten Securities"), the
name of each Underwriter participating in such offering (subject to substitution
as provided in Section 8 hereof) and the name of any Underwriter other than the
Representatives acting as co-manager in connection with such offering, the
number or aggregate principal amount, as the case may be, of Underwritten
Securities which each such Underwriter severally agrees to purchase, whether
such offering is on a fixed or variable price basis and, if on a fixed price
basis, the initial offering price, the price at which the Underwritten
Securities are to be purchased by the Underwriters, the form, time, date and
place of delivery and payment of the Underwritten Securities and any other
material variable terms of the Underwritten Securities. The Terms Agreement,
which may be in the form of Exhibit A hereto or in such other form as may be
agreed between the Company and the Underwriters, may take the form of an
exchange of any standard form of written telecommunication between the Company
and the Representatives, acting for themselves and, if applicable, as
representatives of any other Underwriters. Each offering of Underwritten
Securities through the Representatives as the only Underwriters or through an
underwriting syndicate managed by the Representatives will be governed by this
Underwriting Agreement, as supplemented by the applicable Terms Agreement.
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2. Representations and Warranties of the Company. The Company
represents and warrants to the Representatives, as of the date hereof, and to
each Underwriter named in the applicable Terms Agreement, as of the date thereof
and as of each Closing Date (as defined below) that:
(a) A registration statement on Form S-3 (No. 333-[______])
relating to the Securities, including a form of prospectus, has been
filed with the Securities and Exchange Commission ("Commission") for
the registration of the Securities under the Securities Act of 1933, as
amended ("Securities Act"), and the offering thereof from time to time
in accordance with Rule 415 of the rules and regulations of the
Commission under the Securities Act (the "Securities Act Regulations").
The registration statement has been declared effective by the
Commission and the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
Company has filed such post-effective amendments thereto as may be
required prior to the execution of the applicable Terms Agreement and
each such post-effective amendment has been declared effective by the
Commission.
The registration statement (as so amended, if applicable),
including the information, if any, deemed to be a part thereof pursuant
to Rule 430A(b) of the Securities Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the Securities Act Regulations (the
"Rule 434 Information"), is referred to herein as the "Registration
Statement"; and the final prospectus and the final prospectus
supplement relating to the offering of the Underwritten Securities, in
the form first furnished to the Underwriters by the Company for use in
connection with the offering of the Underwritten Securities, are
collectively referred to herein as the "Prospectus"; provided, however,
that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated
therein by reference pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), prior to the execution of the
applicable Terms Agreement; provided, further, that if the Company
files a registration statement with the Commission pursuant to Rule
462(b) of the Securities Act Regulations (the "Rule 462(b) Registration
Statement"), then, after such filing, all references to "Registration
Statement" shall also be deemed to include the Rule 462(b) Registration
Statement. A "preliminary prospectus" shall be deemed to refer to any
prospectus used before the Registration Statement became effective and
any prospectus that omitted, as applicable, the Rule 430A Information,
the Rule 434 Information or other information to be included upon
pricing in a form of prospectus filed with the Commission pursuant to
Rule 424(b) of the Securities Act Regulations and was used after such
effectiveness and prior to the execution and delivery of the applicable
Terms Agreement.
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For purposes of this Underwriting Agreement, all references to
the Registration Statement, Prospectus or preliminary prospectus or to
any amendment or supplement to any of the foregoing shall be deemed to
include any copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX"). All references
in this Underwriting Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" (or
other similar expressions) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such
financial statements and schedules and other information which is
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, prior to the execution of
the applicable Terms Agreement; and all references in this Underwriting
Agreement to amendments or supplements to the Registration Statement,
Prospectus or preliminary prospectus shall be deemed to mean and
include the filing of any document under the Exchange Act which is
incorporated by reference in the Registration Statement, Prospectus or
preliminary prospectus, as the case may be, after the execution of the
applicable Terms Agreement.
(b) The Company meets the requirements for use of Form S-3
under the Securities Act. No stop order suspending the effectiveness of
the Registration Statement has been issued under the Securities Act and
no proceedings for that purpose have been instituted or are pending or,
to the knowledge of the Company, are contemplated by the Commission,
and any request on the part of the Commission for additional
information has been complied with.
The Registration Statement, as of its effective date,
conformed in all material respects to the requirements of the
Securities Act and the Securities Act Regulations and did not include
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; and the Prospectus, as of the time of filing
pursuant to Rule 424(b), will conform in all material respects to the
requirements of the Securities Act and the Securities Act Regulations,
and the Prospectus, as of its issue date and as of the Closing Date,
will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in or
omissions from the Registration Statement or the Prospectus based upon
written information furnished to the Company by any Underwriter through
the Representatives specifically for use therein.
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(c) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the time
they were or hereafter are filed with the Commission, complied or will
comply, as the case may be, as to form in all material respects with
the requirements of the Exchange Act and the rules and regulations of
the Commission thereunder (the "Exchange Act Regulations").
(d) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus and to enter into and
perform its obligations under, or as contemplated under, this Agreement
and the applicable Terms Agreement; and the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be in good standing or to be so qualified would not,
individually or in the aggregate, have a material adverse effect on the
business, properties, results of operations or financial condition of
the Company and its subsidiaries taken as a whole ("Material Adverse
Effect").
(e) Each of Toys "R" Us-Delaware, Inc. and Toys "R" Us
Holdings, plc (United Kingdom) (which are the only subsidiaries of the
Company that constitute "significant subsidiaries" as such term is
defined in Rule 1-02 of Regulation S-X) ("Significant Subsidiary")) has
been duly incorporated and is an existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with corporate
power and authority to own its properties and conduct its business as
described in the Prospectus; and each Significant Subsidiary of the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be in good standing or to be
so qualified would not, individually or in the aggregate, have a
Material Adverse Effect; all of the issued and outstanding capital
stock of each Significant Subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; and
the capital stock of each Significant Subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens,
encumbrances and security interests, except as would not, individually
or in the aggregate, have a Material Adverse Effect.
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(f) If the Prospectus contains a "Capitalization" section, the
Company has the authorized, issued and outstanding capitalization as
set forth under such section as of the dates set forth therein.
(g) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(h) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation by the Company of the transactions contemplated by
this Agreement in connection with the issuance and sale of the
Securities by the Company, except such as have been obtained or made
under the Securities Act, the Exchange Act, the Trust Indenture Act and
such as may be required under state or foreign securities or Blue Sky
laws or where the failure to obtain such consent, approval,
authorization or filing would not, individually or in the aggregate,
have a Material Adverse Effect.
(i) The execution, delivery and performance of this Agreement
and the applicable Terms Agreement and the Indenture and the issuance
and sale of the Securities will not result in a breach or violation of
any of the terms and provisions of, or constitute a default under, (a)
any statute, any rule, regulation or order of any governmental
authority, agency or body or any court (domestic or foreign) having
jurisdiction over the Company or any of its Significant Subsidiaries or
any of their properties, or (b) any agreement or instrument to which
the Company or any such Significant Subsidiary is a party or by which
the Company or any such Significant Subsidiary is bound or to which any
of the properties of the Company or any such Significant Subsidiary is
subject, or (c) the Restated Certificate of Incorporation or Restated
By-laws of the Company, except, in the case of clauses (a) and (b)
only, for such breaches, violations or defaults that would not,
individually or in the aggregate, have a Material Adverse Effect.
(j) This Agreement has been, and the applicable Terms
Agreement as of the date thereof will have been, duly authorized,
executed and delivered by the Company.
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(k) Except as disclosed in the Prospectus, the Company and its
Significant Subsidiaries have good and marketable title to all real
properties and all personal property owned by them, respectively, in
each case free from liens, encumbrances and defects that would
materially and adversely affect the value thereof or materially and
adversely interfere with the use made or to be made thereof by them,
except as would not, individually or in the aggregate, have a Material
Adverse Effect; and except as disclosed in the Prospectus, the Company
and its Significant Subsidiaries hold any leased real property or
buildings under valid and enforceable leases with no material
exceptions that would materially interfere with the use made or to be
made thereof by them, except as would not, individually or in the
aggregate, have a Material Adverse Effect.
(l) The Company and its Significant Subsidiaries possess or
have obtained all licenses, certificates, authorizations or permits
issued by appropriate governmental agencies or bodies necessary to
conduct the business now operated by them and have not received any
notice of proceedings relating to the revocation or modification of any
such license, certificate, authorization or permit that would,
individually or in the aggregate, have a Material Adverse Effect.
(m) No labor dispute with the employees of the Company or any
of its Significant Subsidiaries exists or, to the knowledge of the
Company, is threatened that would, individually or in the aggregate,
have a Material Adverse Effect.
(n) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other
rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively,
"intellectual property rights") necessary to conduct the business now
operated by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that would,
individually or in the aggregate, have a Material Adverse Effect.
(o) Except as disclosed in the Prospectus, there are no legal
or government actions, suits or proceedings pending against or
affecting the Company or any of its Significant Subsidiaries or any of
their respective properties that would, individually or in the
aggregate, have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under this Agreement; and to the Company's knowledge, no such actions,
suits or proceedings are threatened or, contemplated by governmental
authorities or threatened by others.
(p) Ernst & Young LLP, who have certified the audited
financial statements of the Company and its subsidiaries incorporated
by reference in the Registration Statement and the Prospectus are
independent public accountants as required by the Securities Act, the
Securities Act Regulations, the Exchange Act and the Exchange Act
Regulations.
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(q) The financial statements, together with the related notes
and schedules, incorporated by reference in the Registration Statement
and the Prospectus present fairly in all material respects the
financial position of the Company and its consolidated subsidiaries as
of the dates shown and their consolidated results of operations and
changes in consolidated cash flows, for the periods shown, and, except
as otherwise disclosed in the Prospectus, such financial statements
have been prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis.
(r) Except as disclosed in the Prospectus, since the date as
of which information is given therein, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change in the business, properties, results of
operations or financial condition of the Company and its subsidiaries
taken as a whole, and, except as disclosed in or contemplated by the
Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(s) 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 an
"investment company" as defined in, and subject to regulation under,
the Investment Company Act of 1940.
(t) The Company and its Significant Subsidiaries have filed
all federal, state, local and foreign tax returns that have been
required to be filed or has duly requested extensions thereof, except
to the extent that any failure to file or request for extension would
not, individually or in the aggregate, have a Material Adverse Effect.
The Company and its Significant Subsidiaries have paid all taxes shown
as due on such filed tax returns (including any related assessments),
except to the extent that any such taxes or assessments are being
contested in good faith and by appropriate proceedings, or to the
extent that any failure to pay would not, individually or in the
aggregate, have a Material Adverse Effect.
(u) The Underwritten Securities have been, or as of the date
of the applicable Terms Agreement will have been, duly authorized by
the Company, and, when the Underwritten Securities are duly executed
and delivered by the Company against payment therefor as set forth
herein and upon due authentication thereof by the Trustee, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture, subject to (i) the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, (ii) general equitable principles (whether considered
in a proceeding in equity or law) and (iii) an implied covenant of good
faith and faith dealing. The Underwritten Securities will conform, when
issued, in all material respects to the description thereof contained
in the Prospectus.
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(v) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally
binding agreement of the Company enforceable against the Company in
accordance with its terms, subject to (i) the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, (ii)
general equitable principles (whether considered in a proceeding in
equity or law) and (iii) an implied covenant of good faith and fair
dealing. The Indenture conforms in all material respects to the
description thereof contained in the Prospectus.
3. Purchase, Sale and Delivery of Underwritten Securities. The several
commitments of the Underwriters to purchase the Underwritten Securities pursuant
to the applicable Terms Agreement shall be deemed to have been made on the basis
of the representations, warranties and agreements herein contained and shall be
subject to the terms and conditions herein set forth.
The Company will deliver the Underwritten Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price in federal (same day) funds by wire transfer to an account at a
bank reasonably acceptable to the Representatives drawn to the order of the
Company at the office of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
X.X. 00000 or at such other place as shall be agreed upon by the Company and the
Representatives, at 9:00 A.M., New York City time on the third (fourth, if the
pricing occurs after 4:30 P.M. (New York City time) on any given day) business
day after the date of the applicable Terms Agreement (unless postponed in
accordance with the provisions of Section 8 hereof), or at such other time not
later than seven full business days thereafter as the Representatives and the
Company determine, such time being herein referred to as the "Closing Date." For
purposes of Rule 15c6-1 under the Exchange Act, the Closing Date shall be the
settlement date for payment of funds and delivery of securities for all the
Underwritten Securities sold pursuant to an offering. The certificates for the
Underwritten Securities so to be delivered will be in definitive form, in such
denominations and registered in such names as the Representatives shall request
and will be made available for checking and packaging at the above office of
Shearman & Sterling not later than 2:00 P.M. (New York City time) on the
business day prior to the Closing Date.
It is understood that each Underwriter has authorized the
Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Underwritten Securities which it has
severally agreed to purchase. The Representatives, each individually and not as
representatives of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Underwritten Securities to be purchased by
any Underwriter whose funds have not been received by the Closing Date, but such
payment shall not relieve such Underwriter from its obligations hereunder.
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4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Underwritten Securities for sale to the public
as set forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
Representatives and with each Underwriter participating in the offering of
Underwritten Securities that:
(a) The Company will prepare (in a form reasonably approved by
the Representatives) and file the Prospectus with the Commission
pursuant to and in accordance with the applicable subparagraph of Rule
424(b) under the Securities Act not later than the second business day
following the execution and delivery of the Terms Agreement applicable
to the Underwritten Securities or, if applicable, such earlier time as
may be required by such rule). The Company will advise the
Representatives promptly of any such filing pursuant to Rule 424(b).
(b) The Company will advise the Representatives promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will provide the Representatives with copies thereof and
will not effect any such amendment or supplement (other than filings
pursuant to the Exchange Act) to which the Representatives reasonably
object after reasonable opportunity for review of such amendment or
supplement. To the extent the distribution of Underwritten Securities
has not been completed, the Company will be required to provide the
Representatives with reports that it is required to file with the
Commission under the Exchange Act. The Company will also advise the
Representatives promptly of the effectiveness of any post-effective
amendment to the Registration Statement or the filing of any amendment
or supplement to the Prospectus and of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement and will use its reasonable best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a Prospectus is required to be
delivered under the Securities Act in connection with sales by any
Underwriter, any event occurs as a result of which the Prospectus as
then amended or supplemented would include an 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, or if it is necessary at any time when
a Prospectus is required to be delivered under the Securities Act
in connection with sales by any Underwriter to amend the Prospectus to
comply with the Securities Act, the Company will promptly notify the
Representatives of such event, and will promptly prepare and file with
the Commission, at its own expense (or, if such time is in excess of
nine months from the date of the applicable Terms Agreement, at the
expense of the Underwriters), an amendment or supplement that will
correct such statement or omission or an amendment which will effect
such compliance. Neither the Representatives' consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
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(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the effective date of the
Registration Statement which will satisfy the provisions of Section
11(a) of the Securities Act (including, at the option of the Company,
Rule 158 under the Securities Act). For the purpose of the preceding
sentence, "Availability Date" means the 45th day after the end of the
fourth fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "Availability Date" means the
90th day after the end of such fourth fiscal quarter.
(e) The Company will, as promptly as reasonably practicable
after the date of the Terms Agreement applicable to the Underwritten
Securities, furnish to each Underwriter copies of the Registration
Statement (one of which will include all exhibits), each related
preliminary prospectus, and, so long as a prospectus relating to the
Underwritten Securities is required to be delivered under the
Securities Act in connection with sales by any Underwriter, the
Prospectus and all amendments and supplements to such documents, in
each case in such quantities as such Underwriter reasonably requests.
The Company will, subject to the terms hereof, pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company will use its reasonable best efforts to
arrange for the qualification of the Underwritten Securities for sale
under the laws of such jurisdictions as the Representatives reasonably
designate and will continue such qualifications in effect so long as
required for the distribution of the Securities; provided, however,
that the Company and its subsidiaries shall not be obligated to qualify
as foreign corporations in any jurisdiction in which they are not so
qualified or to file a general consent to service of process in any
jurisdiction.
(g) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and the applicable
Terms Agreement, including (i) the fees and expenses of the Trustee
(including the reasonable fees and disbursements of its counsel); (ii)
any filing fees and other expenses (including reasonable fees and
disbursements of counsel to the Underwriters) incurred in connection
with qualification of the Underwritten Securities for sale under the
laws of such jurisdictions as the Representatives reasonably designate
and the printing of memoranda relating thereto; (iii) the printing and
delivery to the Underwriters of copies of each preliminary prospectus
and the Prospectus and any amendments or supplements thereto, subject
to the terms hereof; (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors or agents; (v) any filing fee
incident to any review by the National Association of Securities
Dealers, Inc. of the Underwritten Securities; (vi) any travel expenses
of the Company's officers and employees and any other expenses of the
Company in connection with attending or hosting "roadshow" meetings
with prospective purchasers of the Underwritten Securities; and (vii)
expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters, subject to the terms hereof. Except to the extent, if
any, set forth in Section 9, the Company shall not be responsible to
pay any expenses of the Underwriters incident to the performance of
their obligations under this Agreement and the applicable Terms
Agreement, including, without limitation, the fees and disbursements of
counsel to the Underwriters and the travel expenses of representatives
of the Underwriters in connection with any such "roadshow" meetings.
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(h) Between the date of the applicable Terms Agreement and the
Closing Date or any other date specified in such Terms Agreement, the
Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Securities Act relating to the
Securities specified in such Terms Agreement, or publicly disclose its
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of the Representatives, if and as
specified in the applicable Terms Agreement.
(i) The Company will use its reasonable best efforts to
arrange for the Underwritten Securities, when issued, to be authorized
for listing on The New York Stock Exchange if and as specified in the
applicable Terms Agreement.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Underwritten Securities
pursuant to the applicable Terms Agreement will be subject to the accuracy of
the representations and warranties on the part of the Company herein, as of the
date of such Terms Agreement and as of the Closing Date, to the accuracy of the
statements of Company officers made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Representatives shall have received a letter at the
time of execution of the applicable Terms Agreement of Ernst & Young
LLP confirming that they are independent public accountants within the
meaning of the Securities Act and the Securities Act Regulations
thereunder and stating substantially to the effect that:
(i) in their opinion the financial statements and
schedules examined by them and included or incorporated by
reference in the Registration Statement comply as to form in
all material respects with the applicable accounting
requirements of the Securities Act and the related published
Rules and Regulations;
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(ii) on the basis of a reading of the latest
available interim financial statements of the Company,
inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified
procedures, nothing came to their attention that caused them
to believe that:
(A) at the date of the latest available balance
sheet read by such accountants, or at a
subsequent specified date not more than
three business days prior to the date of the
applicable Terms Agreement, there was any
change in the capital stock or any increase
in short-term indebtedness or long-term debt
of the Company and its consolidated
subsidiaries or, at the date of the latest
available balance sheet read by such
accountants, there was any decrease in
consolidated net current assets or net
assets, as compared with amounts shown on
the latest balance sheet included in the
Prospectus; or
(B) for the period from the date of the latest
income statement included in the Prospectus
to the date of the latest available income
statement read by such accountants there
were any decreases, as compared with the
corresponding period of the previous year in
consolidated net sales or net operating
income or consolidated net income,
except in all cases set forth in clauses (A) and (B)
above for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or
which are described in such letter; and
(iii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statement
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from
the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter.
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(b) The Representatives shall have received a letter,
dated such Closing Date, of Ernst & Young LLP which meets the
requirements of Section 6(a), except that the specified date
referred to in such subsection will be a date not more than
three days prior to such Closing Date for the purposes of this
subsection.
(c) The Registration Statement shall have become
effective under the Securities Act and the Prospectus shall
have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) of this Agreement; and
prior to such Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or the
Representatives, shall be contemplated by the Commission.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or
any development or event involving a prospective change, in
the business, properties, results of operations or financial
condition of the Company and its subsidiaries taken as a
whole, which, in the judgment of a majority in interest of the
Underwriters including the Representatives, is material and
adverse and makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and
payment for the Underwritten Securities; (ii) any material and
adverse change in U.S. or international financial, political
or economic conditions as would, in the judgment of a majority
in interest of the Underwriters including the Representatives,
be likely to prejudice materially the success of the proposed
issue, sale or distribution of the Underwritten Securities,
whether in the primary market or in respect of dealings in the
secondary market; (iii) any material suspension or material
limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading
on such Exchange, or any suspension of trading of any
securities of the Company on such Exchange or in the
over-the-counter market; (iv) any banking moratorium declared
by U.S. federal or New York authorities; (v) any material and
adverse disruption of settlements of securities or clearance
services in the United States or (vi) any attack on, outbreak
or escalation of hostilities or material act of terrorism
involving, the United States, any declaration of war by
Congress or any other national or international calamity or
emergency if, in the judgment of a majority in interest of the
Underwriters including the Representatives, the effect of any
such attack, outbreak, escalation, act, declaration, calamity
or emergency makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and
payment for the Underwritten Securities.
13
(e) The Representatives shall have received an
opinion, dated such Closing Date, of Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel for the Company, substantially as set forth
in Exhibit B hereto.
(f) The Representatives shall have received an
opinion, dated such Closing Date, of Xxxxxxxxxxx X. Xxx, Esq.,
Executive Vice President--Operations and General Counsel of
the Company, substantially to the effect that:
(i) to such counsel's knowledge, the Company
is duly qualified to do business as a foreign
corporation in good standing in all jurisdictions in
which the ownership or lease of property or the
conduct of its business requires such qualification,
except where the failure to be so qualified would
not, individually or in the aggregate, have a
Material Adverse Effect;
(ii) all outstanding shares of the Common
Stock of the Company have been duly authorized and
validly issued and are fully paid and nonassessable;
(iii) to such counsel's knowledge, there are
no contracts or agreements between the Company and
any person granting such person the right (other than
rights which have been waived or satisfied) to
require the Company to include any securities of the
Company owned or to be owned by such person in the
securities registered pursuant to the Registration
Statement; and
(iv) to the knowledge of such counsel, there
is no pending or threatened 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 or its or
their property of a character required to be
disclosed in the Registration Statement or the
Prospectus which is not adequately described as
required.
Such opinion shall be limited in all respects to matters governed by
the Delaware General Corporation Law and the federal laws of the United
States of America. Such counsel may rely as to certain matters of fact,
to the extent he deems proper, on certificates of officers of the
Company and public officials.
(g) The Representatives shall have received from Shearman &
Sterling, counsel for the Underwriters, such opinion or opinions dated
such Closing Date, with respect to the issuance and sale of the
Underwritten Securities delivered on such Closing Date, the
Registration Statement, the Prospectus, the Indenture, the Securities
and other related matters as the Underwriters may reasonably request,
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.
14
(h) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that: (i) the representations and warranties
of the Company in this Agreement are true and correct in all material
respects; (ii) the Company has complied in all material respects, with
all agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to such Closing Date; (iii) no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or
are contemplated by the Commission; (iv) the Rule 462(b) Registration
Statement (if any) satisfying the requirements of subparagraphs (1) and
(3) of Rule 462(b) under the Securities Act was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance
with Rule 111(a) or (b) under the Securities Act, prior to the time the
Prospectus was printed and distributed to any Underwriter; and (v)
since the date as of which information is given in the Prospectus,
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the business,
properties, results of operations or financial condition of the Company
and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(i) Prior to or on the Closing Date, the Underwritten
Securities shall have been approved for listing, subject to official
notice of issuance and evidence of satisfactory distribution, on the
New York Stock Exchange, and satisfactory evidence of such actions
shall have been provided to the Underwriters, if and as specified in
the applicable Terms Agreement.
(j) At the Closing Date, the Underwritten Securities shall
have the ratings accorded by any "nationally recognized statistical
rating organization" (as defined by the Commission for purposes of Rule
436(g)(2) of the Securities Act Regulations) if and as specified in the
applicable Terms Agreement, and the Company shall have delivered to the
Representatives evidence reasonably satisfactory to the
Representatives, confirming that the Underwritten Securities have such
ratings. Since the time of execution of such Terms Agreement, there
shall not have occurred a downgrading in, or withdrawal of, the rating
assigned to the Underwritten Securities, if any, or any of the
Company's other debt securities by any such rating organization.
The Company will furnish the Representatives with such conformed copies
of such opinions, certificates, letters and documents as the Representatives
reasonably request. The Representatives may in their sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters hereunder.
15
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Securities Act, against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are 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 not misleading, and will,
subject to Section 7(c), reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred (it being understood, however, that the Company
shall, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for all such Underwriters, directors, partners, officers
and controlling persons, which firm shall be designated in writing by the
Representatives); provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein; provided further, that
with respect to any untrue statement or alleged untrue statement or omission or
alleged omission of material fact made in any preliminary prospectus, the
indemnity agreement contained in this Section 7(a) shall not inure to the
benefit of any Underwriter (or its partners, directors, officers or controlling
persons) from whom the person asserting any such loss, claim, damage or
liability purchased the securities concerned, to the extent that any such loss,
claim, damage or liability of such Underwriter (or its partners, directors,
officers or controlling persons) occurs under the circumstance the untrue or
alleged untrue statement or omission or alleged omission of a material fact
contained in the preliminary prospectus was corrected in the Prospectus and
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such securities to such person, a copy of the
Prospectus.
(b) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company, its directors and officers and each
person, if any who controls the Company within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, against any
losses, claims, damages or liabilities to which the Company may become
subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with
written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred.
16
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under Section 7(a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under Section
7(a) or (b) above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld),
effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party unless such
settlement (i) includes an unconditional release of such indemnified
party from all liability on any claims that are the subject matter of
such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of
an indemnified party. No indemnifying party shall be liable for any
settlement of any such action effected without the indemnifying party's
written consent (which consent shall not be unreasonably withheld),
unless, (i) such settlement is entered into more than 30 days after
receipt by the indemnifying party of written notice of the proposed
settlement, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 20 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior
to the date of such settlement.
17
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
Section (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of
the losses, claims, damages or liabilities referred to in Section 7(a)
or (b) above (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the Securities or (ii)
if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission.
The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of
this Section 7(d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the
subject of this Section 7(d). Notwithstanding the provisions of this
Section 7(d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this Section 7(d) to contribute are
several in proportion to their respective underwriting obligations and
not joint.
(e) The obligations of the Company under this Section 7 shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls any Underwriter within the meaning of the
Securities Act; and the obligations of the Underwriters under this
Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director or officer of the Company and to each
person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act.
18
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Underwritten Securities hereunder on any
Closing Date and the aggregate principal amount of Underwritten Securities that
such defaulting Underwriter or Underwriters agreed but failed to purchase does
not exceed 10% of the total principal amount of Underwritten Securities that the
Underwriters are obligated to purchase on such Closing Date, the Representatives
may make arrangements satisfactory to the Company for the purchase of such
Underwritten Securities by other persons, including any of the Underwriters, but
if no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Underwritten Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate principal amount of
Underwritten Securities with respect to which such default or defaults occur
exceeds 10% of the total number of Underwritten Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
the Representatives and the Company for the purchase of such Underwritten
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company, except as provided in Section 9. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default. In the event of any such default
which does not result in a termination of the applicable Terms Agreement, either
the Representatives or the Company shall have the right to postpone the Closing
Date for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or the Prospectus or in any other
documents or arrangements.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Underwritten Securities. If this Agreement is terminated
pursuant to Section 8 or if for any reason the purchase of the Underwritten
Securities by the Underwriters is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
5 and the respective obligations of the Company and the Underwriters pursuant to
Section 7 shall remain in effect, and if any Underwritten Securities have been
purchased hereunder the representations and warranties in Section 2 and all
obligations under Section 5 shall also remain in effect. If the purchase of the
Underwritten Securities by the Underwriters is not consummated for any reason
other than solely because of the termination of this Agreement pursuant to
Section 8 or the occurrence of any event specified in clause (ii), (iii), (iv),
(v) or (vi) of Section 6(d), the Company will reimburse the Underwriters for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel
to the Underwriters) reasonably incurred by them in connection with the offering
of the Underwritten Securities.
19
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives c/o [________]; or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at 000 Xxxx Xxxx, Xxxxxxx,
Xxx Xxxxxx 00000, Attention: General Counsel; provided, however, that any notice
to an Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed
and confirmed to such Underwriter. The Representatives shall promptly furnish
the address of any Underwriter upon the request of the Company.
11. 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 7, and no other
person will have any right or obligation hereunder.
12. Representation of Underwriters. The Representatives will act for
the several Underwriters in connection with offerings of Underwritten
Securities, and any action under this Agreement taken by the Representatives
will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
The Company hereby submits to the non-exclusive jurisdiction of the
U.S. federal and New York state courts in the Borough of Manhattan in The City
of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
20
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
TOYS "R" US, INC.
By:
------------------------------------
Name:
Title:
21
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the date
first above written
[_________________]
By: ________________________
Name:
Title:
[_________________]
By: ________________________
Name:
Title:
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
EXHIBIT A
Toys "R" Us, Inc.
Debt Securities
FORM OF TERMS AGREEMENT
________, 200_
To: Toys "R" Us, Inc.
000 Xxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
We understand that Toys "R" Us, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell $__________ aggregate principal amount of
its senior debt securities (the "Underwritten Securities"). Subject to the terms
and conditions set forth or incorporated by reference herein, we [the
underwriters named below (the "Underwriters")] offer to purchase [, severally
and not jointly,] the [principal amount of] Underwritten Securities [opposite
their names set forth below] at the purchase price set forth below.
[Principal Amount]
Underwriter of Underwritten Securities
-------------------------------------------------------------------------------
Total __________
----------
[$]
==========
The Underwritten Securities shall have the following terms:
Title:
Ranking:
Aggregate principal amount:
Form and Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements (if any):
Ratings:
Clear-market provision:
Type of offering: [Fixed] [Variable] price offering
Initial public offering price per Security (if fixed price offering): ____ % of
the principal amount, plus accrued interest [and amortized original issue
discount], if any, from __________.
Purchase price per Security payable by Underwriters: _____ % of principal
amount, plus accrued interest [and amortized original issue discount], if any,
from __________.
Closing Date and location:
Other terms and conditions:
Please accept this offer no later than ______ P.M. (New York City time)
on _____________ by signing a counterpart of this Terms Agreement in the space
set forth below and returning the signed counterpart to us.
Very truly yours,
[_________________]
By: ____________________
Name:
Title:
[_________________]
By: ____________________
Name:
Title:
[Acting on behalf of themselves
and the other named Underwriters.]
Accepted:
TOYS "R" US, INC.
By:
---------------------------------
Name:
Title:
EXHIBIT B
[Form of Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx to be delivered pursuant to
Section 6(e)]
1. The Company has been duly incorporated and is validly existing and in
good standing as a corporation under the laws of the State of Delaware.
2. The Indenture has been duly authorized, executed and delivered by the
Company and qualified under the Trust Indenture Act and, assuming due
authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms.
3. The Underwritten Securities have been duly authorized, executed and
issued by the Company and, assuming due authentication thereof by the
Trustee and upon payment and delivery in accordance with the
Underwriting Agreement, will constitute valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms and entitled to the benefits of the
Indenture.
4. The statements in the Prospectus under the caption "Description of Debt
Securities," insofar as they purport to constitute summaries of certain
terms of documents referred to therein, constitute accurate summaries
of the terms of such documents in all material respects.
5. The statements set forth in the Prospectus under the caption "United
States Federal Income Tax Consequences," insofar as they purport to
constitute summaries of matters of United States federal tax law and
regulations or legal conclusions with respect thereto, constitute
accurate summaries of the matters described therein in all material
respects.
6. The issue and sale of the Underwritten Securities by the Company and
the compliance by the Company with all of the provisions of the
Underwriting Agreement will not breach or result in a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument filed or incorporated by reference as an
exhibit to the Registration Statement, nor will such action violate the
Restated Certificate of Incorporation or Amended and Restated By-laws,
as amended, of the Company or any U.S. Federal or New York state
statute or the Delaware General Corporation Law or any rule or
regulation that has been issued pursuant to any U.S. Federal or New
York state statute or the Delaware General Corporation Law or any order
known to us issued pursuant to any U.S. Federal or New York state
statute or the Delaware General Corporation Law by any court or
governmental agency or body or court having jurisdiction over the
Company, any of the Company's Significant Subsidiaries or any of their
properties.
7. No consent, approval, authorization, order, registration or
qualification of or with any U.S. Federal or New York governmental
agency or body or any Delaware governmental agency or body acting
pursuant to the Delaware General Corporation Law or, to our knowledge,
any U.S. Federal or New York court or any Delaware court acting
pursuant to the Delaware General Corporation Law is required for the
issue and sale of the Underwritten Securities by the Company and the
compliance by the Company with the provisions of the Underwriting
Agreement, except for the registration of the Underwritten Securities
under the Securities Act and the Exchange Act, the qualification of the
Indenture under the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Underwritten Securities by the Underwriters.
8. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
9. The Company is not an "investment company" or a company "controlled" by
an "investment company" within the meaning of and subject to regulation
under the Investment Company Act of 1940, as amended.
The opinions referred to in subparagraphs (2) and (3) above may be subject (i)
to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, (ii) general equitable principles (whether considered in a proceeding
in equity or at law) and (iii) an implied covenant of good faith and fair
dealing.
The opinion letter shall also contain a statement substantially to the following
effect: (i) such counsel is of the opinion that the Registration Statement, as
of its effective date, and the Prospectus, as of its date, complied as to form
in all material respects with the requirements of the Securities Act, the Trust
Indenture Act and the applicable rules and regulations of the Commission
thereunder and that the documents filed under the Exchange Act and incorporated
by reference, or deemed to be incorporated by reference, therein, if any (the
"Exchange Act Documents"), complied as to form when filed in all material
respects with the requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder (except that in each case such counsel
need not express any opinion with respect to the financial statements or other
financial data contained or incorporated by reference in the Registration
Statement, the Prospectus or the Exchange Act Documents, and (ii) such counsel
has no reason to believe that the Registration Statement, as of its effective
date (including the Exchange Act Documents on file with the Commission on such
effective date) or as of the date of filing of the Annual Report on Form 10-K of
the Company for the most recent fiscal year, as the case may be, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading or that the Prospectus (including the Exchange Act
Documents) contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading (except
that in each case such counsel need not express any belief with respect to the
financial statements or other financial data contained or incorporated by
reference in the Registration Statement, the Prospectus or the Exchange Act
Documents).
