EXHIBIT 1
EXECUTION COPY
LIMITED BRANDS, INC.
$350,000,000
6.95% Debentures due 2033
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
New York, New York
February 19, 2003
X.X. Xxxxxx Securities Inc.
As Representative of the Initial Purchasers
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Limited Brands, Inc., a corporation organized under the laws
of Delaware (the "Company"), proposes to issue and sell to certain purchasers
(the "Initial Purchasers"), upon the terms set forth in a purchase agreement
dated as of February 13, 2003 (the "Purchase Agreement"), its 6.95% Debentures
due 2033 (the "Securities") relating to the initial placement of the Securities
(the "Initial Placement"). To induce the Initial Purchasers to enter into the
Purchase Agreement and to satisfy a condition of your obligations thereunder,
the Company agrees with you for your benefit and the benefit of the holders
from time to time of the Securities (including the Initial Purchasers) (each a
"Holder" and, together, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the
following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified Person shall mean any other
Person that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified Person. For purposes of this
definition, control of a Person shall mean the power, direct or indirect, to
direct or cause the direction of the management and policies of such Person
whether
by contract or otherwise; and the terms "controlling" and "controlled" shall
have meanings correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as
such under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Offer Registration Period" shall mean the six-month
period following the consummation of the Registered Exchange Offer, exclusive
of any period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a
registration statement of the Company on an appropriate form under the Act with
respect to the Registered Exchange Offer, all amendments and supplements to
such registration statement, including post-effective amendments thereto, in
each case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include
any Initial Purchaser) that is a Broker-Dealer and elects to exchange for New
Securities any Securities that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from the
Company or any Affiliate of the Company) for New Securities.
"Final Memorandum" shall have the meaning set forth in the
Purchase Agreement.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Securities to
be dated as of February , 2003, between the Company and The Bank of New York,
as trustee, as the same may be amended from time to time in accordance with the
terms thereof.
"Initial Placement" shall have the meaning set forth in the preamble
hereto.
"Initial Purchaser" shall have the meaning set forth in the preamble
hereto.
"Losses" shall have the meaning set forth in Section 6(d) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Securities registered under a Registration
Statement.
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"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an
underwritten offering.
"New Securities" shall mean debt securities of the Company
identical in all material respects to the Securities (except that the cash
interest and interest rate step-up provisions and the transfer restrictions
shall be modified or eliminated, as appropriate) and to be issued under the
Indenture or the New Securities Indenture.
"New Securities Indenture" shall mean an indenture between
the Company and the New Securities Trustee, identical in all material respects
to the Indenture (except that the cash interest and interest rate step-up
provisions will be modified or eliminated, as appropriate).
"New Securities Trustee" shall mean a bank or trust company
reasonably satisfactory to the Initial Purchasers, as trustee with respect to
the New Securities under the New Securities Indenture.
"Prospectus" shall mean the prospectus included in any
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities or the New Securities covered
by such Registration Statement, and all amendments and supplements thereto and
all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble hereto.
"Registered Exchange Offer" shall mean the proposed offer of
the Company to issue and deliver to the Holders of the Securities that are not
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate principal amount of the
New Securities.
"Registration Statement" shall mean any Exchange Offer
Registration Statement or Shelf Registration Statement that covers any of the
Securities or the New Securities pursuant to the provisions of this Agreement,
any amendments and supplements to such registration statement, including
post-effective amendments (in each case including the Prospectus contained
therein), all exhibits thereto and all material incorporated by reference
therein.
"Securities" shall have the meaning set forth in the preamble
hereto.
"Shelf Registration" shall mean a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 3(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company pursuant to the provisions of Section 3
hereof which covers some or all of the Securities or New Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, amendments and supplements
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to such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
"underwriter" shall mean any underwriter of Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer. (a) The Company shall use its reasonable
best efforts to prepare and file, not later than 90 days following the date of
the original issuance of the Securities (or if such 90th day is not a Business
Day, the next succeeding Business Day), with the Commission the Exchange Offer
Registration Statement with respect to the Registered Exchange Offer. The
Company shall use its reasonable best efforts to cause the Exchange Offer
Registration Statement to become effective under the Act within 180 days of the
date of the original issuance of the Securities (or if such 180th day is not a
Business Day, the next succeeding Business Day) and use its reasonable best
efforts to consummate the Registered Exchange Offer as promptly as practicable,
but in any event within 210 days of the date of the original issuance of the
Securities (or if such 210th day is not a Business Day, the next succeeding
Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered Exchange
Offer, it being the objective of such Registered Exchange Offer to enable
each Holder electing to exchange Securities for New Securities (assuming
that such Holder is not an Affiliate of the Company, acquires the New
Securities in the ordinary course of such Holder's business, has no
arrangements with any Person to participate in the distribution of the New
Securities and is not prohibited by any law or policy of the Commission
from participating in the Registered Exchange Offer) to trade such New
Securities from and after their receipt without any limitations or
restrictions under the Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the
United States.
(c) In connection with the Registered Exchange Offer, the Company
shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with
an appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than
20 Business Days after the date notice thereof is mailed to
the Holders (or longer if required by applicable law);
(iii) use its reasonable best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented
and amended as required under the Act to ensure that it is
available for sales of New Securities by Exchanging Dealers
during the Exchange Offer Registration Period;
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(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan
in New York City, which may be the Trustee, the New
Securities Trustee or an Affiliate of either of them;
(v) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last
Business Day on which the Registered Exchange Offer is
open; and
(vi) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Company shall:
(i) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
(iii) cause the New Securities Trustee promptly to authenticate
and deliver to each Holder of Securities a principal amount
of New Securities equal to the principal amount of the
Securities of such Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer
and any such Holder using the Registered Exchange Offer to participate in
a distribution of the New Securities (x) could not under Commission policy
as in effect on the date of this Agreement rely on the position of the
Commission in Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991) and
Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated July
2, 1993 and similar no-action letters; and (y) must comply with the
registration and prospectus delivery requirements of the Act in connection
with any secondary resale transaction and must be covered by an effective
registration statement containing the selling security holder information
required by Item 507 or 508, as applicable, of Regulation S-K under the
Act if the resales are of New Securities obtained by such Holder in
exchange for Securities acquired by such Holder directly from the Company
or one of its Affiliates. Accordingly, each Holder participating in the
Registered Exchange Offer shall be required to represent to the Company
that, at the time of the consummation of the Registered Exchange Offer:
(i) any New Securities received by such Holder will be acquired
in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding with
any Person to participate in the distribution of the
Securities or the New Securities within the meaning of the
Act; and
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(iii) such Holder is not an Affiliate of the Company.
(f) If any Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange
of Securities constituting any portion of an unsold allotment, at the
request of such Initial Purchaser, the Company shall issue and deliver to
such Initial Purchaser or the Person purchasing New Securities registered
under a Shelf Registration Statement as contemplated by Section 3 hereof
from such Initial Purchaser, in exchange for such Securities, a like
principal amount of New Securities. The Company shall use its reasonable
best efforts to cause the CUSIP Service Bureau to issue the same CUSIP
number for such New Securities as for New Securities issued pursuant to
the Registered Exchange Offer.
3. Shelf Registration. (a) If (i) due to any change in law or applicable
interpretations thereof by the Commission's staff, the Company determines upon
advice of its outside counsel that it is not permitted to effect the Registered
Exchange Offer as contemplated by Section 2 hereof; (ii) for any other reason
the Registered Exchange Offer is not consummated within 210 days of the date
hereof; (iii) any Initial Purchaser so requests with respect to Securities that
are not eligible to be exchanged for New Securities in the Registered Exchange
Offer and that are held by it following consummation of the Registered Exchange
Offer; (iv) any Holder (other than an Initial Purchaser) is not eligible to
participate in the Registered Exchange Offer; or (v) in the case of any Initial
Purchaser that participates in the Registered Exchange Offer or acquires New
Securities pursuant to Section 2(f) hereof, such Initial Purchaser does not
receive freely tradeable New Securities in exchange for Securities constituting
any portion of an unsold allotment (it being understood that (x) the
requirement that an Initial Purchaser deliver a Prospectus containing the
information required by Item 507 or 508 of Regulation S-K under the Act in
connection with sales of New Securities acquired in exchange for such
Securities shall result in such New Securities being not "freely tradeable";
and (y) the requirement that an Exchanging Dealer deliver a Prospectus in
connection with sales of New Securities acquired in the Registered Exchange
Offer in exchange for Securities acquired as a result of market-making
activities or other trading activities shall not result in such New Securities
being not "freely tradeable"), the Company shall effect a Shelf Registration
Statement in accordance with subsection (b) below.
(b) (i) The Company shall as promptly as practicable (but in no event
more than 90 days after so required or requested pursuant to this Section
3), file with the Commission and thereafter shall use its reasonable best
efforts to cause to be declared effective under the Act, within 180 days
of the date the Company is required to make such filing in accordance with
subsection (a) above, a Shelf Registration Statement relating to the offer
and sale of the Securities or the New Securities, as applicable, by the
Holders thereof from time to time in accordance with the methods of
distribution elected by such Holders and set forth in such Shelf
Registration Statement; provided, however, that no Holder (other than an
Initial Purchaser) shall be entitled to have the Securities held by it
covered by such Shelf Registration Statement unless such Holder agrees in
writing to be bound by all of the provisions of this Agreement applicable
to such Holder; and provided further, that with respect to New Securities
received by an Initial Purchaser in exchange for Securities constituting
any portion of an unsold allotment, the Company may, if permitted by
current interpretations by the Commission's staff, file a post-
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effective amendment to the Exchange Offer Registration Statement
containing the information required by Item 507 or 508 of Regulation S-K,
as applicable, in satisfaction of its obligations under this subsection
with respect thereto, and any such Exchange Offer Registration Statement,
as so amended, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement.
(ii) The Company shall use its reasonable best efforts to keep
the Shelf Registration Statement continuously effective,
supplemented and amended as required by the Act, in order
to permit the Prospectus forming part thereof to be usable
by Holders for a period of two years from the date the
Shelf Registration Statement is declared effective by the
Commission or such shorter period that will terminate when
all the Securities or New Securities, as applicable,
covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement (in any such
case, such period being called the "Shelf Registration
Period"). The Company shall be deemed not to have used its
reasonable best efforts to keep the Shelf Registration
Statement effective during the requisite period if it
voluntarily takes any action that would result in Holders
of Securities covered thereby not being able to offer and
sell such Securities during that period, unless (A) such
action is required by applicable law; or (B) such action is
taken by the Company in good faith and for valid business
reasons (not including avoidance of the Company's
obligations hereunder), including the acquisition or
divestiture of assets, so long as the Company promptly
thereafter complies with the requirements of Section 4(k)
hereof, if applicable.
(iii) The Company shall cause the Shelf Registration Statement
and the related Prospectus and any amendment or supplement
thereto, as of the effective date of the Shelf Registration
Statement or such amendment or supplement, (A) to comply in
all material respects with the applicable requirements of
the Act and the rules and regulations of the Commission;
and (B) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
4. Additional Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Company shall:
(i) furnish to you, not less than five Business Days prior to
the filing thereof with the Commission, a copy of any
Exchange Offer
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Registration Statement and any Shelf Registration
Statement, and each amendment thereof and each amendment or
supplement, if any, to the Prospectus included therein
(including all documents incorporated by reference therein
after the initial filing) and shall use its reasonable best
efforts to reflect in each such document, when so filed
with the Commission, such comments as you reasonably
propose;
(ii) include the information set forth in Annex A hereto on the
facing page of the Prospectus contained in the Exchange
Offer Registration Statement, in Annex B hereto in the
forepart of the Prospectus contained in the Exchange Offer
Registration Statement in a section setting forth details
of the Exchange Offer, in Annex C hereto in the
underwriting or plan of distribution section of the
Prospectus contained in the Exchange Offer Registration
Statement, and in Annex D hereto in the letter of
transmittal delivered pursuant to the Registered Exchange
Offer;
(iii) if requested by an Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K,
as applicable, in the Prospectus contained in the Exchange
Offer Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the
names of the Holders that propose to sell Securities
pursuant to the Shelf Registration Statement as selling
security holders.
(b) The Company shall ensure that:
(i) any Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or
supplement thereto complies in all material respects with
the Act and the rules and regulations thereunder; and
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, 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.
(c) The Company shall advise you, the Holders of Securities covered
by any Shelf Registration Statement and any Exchanging Dealer under any
Exchange Offer Registration Statement that has provided in writing to the
Company a telephone or facsimile number and address for notices, and, if
requested by you or any such Holder or Exchanging Dealer, shall confirm
such advice in writing (which notice pursuant to clauses (ii)-(v) hereof
shall be accompanied by an instruction to suspend the use of the
Prospectus until the Company shall have remedied the basis for such
suspension):
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(i) when a Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has
become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus
or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement
or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the
securities included therein for sale in any jurisdiction or
the initiation of any proceeding for such purpose; and
(v) of the happening of any event that requires any change in
the Registration Statement or the Prospectus so that, as of
such date, the statements therein are not misleading and do
not omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the
case of the Prospectus, in the light of the circumstances
under which they were made) not misleading.
(d) The Company shall use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement or the qualification of the securities therein for sale in any
jurisdiction at the earliest possible time.
(e) The Company shall furnish to each Holder of Securities covered by
any Shelf Registration Statement, without charge, at least one copy of
such Shelf Registration Statement and any post-effective amendment
thereto, including all material incorporated therein by reference, and, if
the Holder so requests in writing, all exhibits thereto (including
exhibits incorporated by reference therein).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Securities covered by any Shelf Registration Statement,
without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement and
any amendment or supplement thereto as such Holder may reasonably request.
The Company consents to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of securities in
connection with the offering and sale of the securities covered by the
Prospectus, or any amendment or supplement thereto, included in the Shelf
Registration Statement.
(g) The Company shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
all material incorporated by reference
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therein, and, if the Exchanging Dealer so requests in writing, all
exhibits thereto (including exhibits incorporated by reference therein).
(h) The Company shall promptly deliver to each Initial Purchaser,
each Exchanging Dealer and each other Person required to deliver a
Prospectus during the Exchange Offer Registration Period, without charge,
as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as any such
Person may reasonably request. The Company consents to the use of the
Prospectus or any amendment or supplement thereto by any Initial
Purchaser, any Exchanging Dealer and any such other Person that may be
required to deliver a Prospectus following the Registered Exchange Offer
in connection with the offering and sale of the New Securities covered by
the Prospectus, or any amendment or supplement thereto, included in the
Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Securities pursuant to any Registration Statement, the Company shall
arrange, if necessary, for the qualification of the Securities or the New
Securities for sale under the laws of such jurisdictions as any Holder
shall reasonably request and will maintain such qualification in effect so
long as required; provided that in no event shall the Company be obligated
to qualify to do business in any jurisdiction where it is not then so
qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the Initial Placement,
the Registered Exchange Offer or any offering pursuant to a Shelf
Registration Statement, in any such jurisdiction where it is not then so
subject.
(j) The Company shall cooperate with the Holders of Securities to
facilitate the timely preparation and delivery of certificates
representing New Securities or Securities to be issued or sold pursuant to
any Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request.
(k) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Company shall promptly prepare a
post-effective amendment to the applicable Registration Statement or an
amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to Initial Purchasers
of the securities included therein, the Prospectus will not 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. In such
circumstances, the period of effectiveness of the Exchange Offer
Registration Statement provided for in Section 2 and the Shelf
Registration Statement provided for in Section 3(b) shall each be extended
by the number of days from and including the date of the giving of a
notice of suspension pursuant to Section 4(c) to and including the date
when the Initial Purchasers, the Holders of the Securities and any known
Exchanging Dealer shall have received such amended or supplemented
Prospectus pursuant to this Section.
(l) Not later than the effective date of any Registration Statement,
the Company shall provide a CUSIP number for the Securities or the
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New Securities, as the case may be, registered under such Registration
Statement and provide the Trustee with printed certificates for such
Securities or New Securities, in a form eligible for deposit with The
Depository Trust Company.
(m) The Company shall comply with all applicable rules and
regulations of the Commission and shall make generally available to its
security holders as soon as practicable after the effective date of the
applicable Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the Act.
(n) The Company shall cause the Indenture or the New Securities
Indenture, as the case may be, to be qualified under the Trust Indenture
Act in a timely manner.
(o) The Company may require each Holder of securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Company
such information regarding the Holder and the distribution of such
securities as the Company may from time to time reasonably require for
inclusion in such Registration Statement. The Company may exclude from
such Shelf Registration Statement the Securities of any Holder that
unreasonably fails to furnish such information within a reasonable time
after receiving such request.
(p) In the case of any Shelf Registration Statement, the Company
shall enter into such and take all other appropriate actions (including,
if requested, an underwriting agreement in customary form) in order to
expedite or facilitate the registration or the disposition of the
Securities, and in connection therewith, if an underwriting agreement is
entered into, cause the same to contain indemnification provisions and
procedures no less favorable than those set forth in Section 6 (or such
other provisions and procedures acceptable to the Majority Holders and the
Managing Underwriters, if any, with respect to all parties to be
indemnified pursuant to Section 6).
(q) In the case of any Shelf Registration Statement, the Company
shall:
(i) make reasonably available for inspection by the Holders of
Securities to be registered thereunder, any underwriter
participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or
other agent retained by the Holders or any such underwriter
all relevant financial and other records, pertinent
corporate documents and properties of the Company and its
subsidiaries;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by the
Holders or any such underwriter, attorney, accountant or
agent in connection with any such Registration Statement as
is customary for similar due diligence examinations;
provided, however, that any information that is designated
in writing by the Company, in good faith, as confidential
at the time of delivery of such information shall be kept
confidential by the Holders or any such underwriter,
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attorney, accountant or agent, unless such disclosure is
made in connection with a court proceeding or required by
law, or such information becomes available to the public
generally or through a third party without an accompanying
obligation of confidentiality;
(iii) make such representations and warranties to the Holders of
Securities registered thereunder and the underwriters, if
any, in form, substance and scope as are customarily made
by issuers to underwriters in primary underwritten
offerings and covering matters including, but not limited
to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and
the underwriters, if any, covering such matters as are
customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably
requested by such Holders and underwriters;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company
(and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial
statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each
selling Holder of Securities registered thereunder and the
underwriters, if any, in customary form and covering
matters of the type customarily covered in "cold comfort"
letters in connection with primary underwritten offerings;
and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the
Managing Underwriters, if any, including those to evidence
compliance with Section 4(k) and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company.
The actions set forth in clauses (iii), (iv), (v) and (vi) of
this Section shall be performed at (A) the effectiveness of such Registration
Statement and each post-effective amendment thereto; and (B) each closing under
any underwriting or similar agreement as and to the extent required thereunder.
(r) In the case of any Exchange Offer Registration Statement in which
a Broker-Dealer is required to deliver a Prospectus during the Exchange
Offer Registration Period, the Company agrees that the provisions of
Section 4(q) as they relate to a Shelf Registration shall also apply to
any Exchange Offer Registration Statement; provided that the application
of the Shelf Registration procedures set forth in Section 4(q) of this
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Agreement to such Exchange Offer Registration Statement, to the extent not
required by the positions of the Staff of the SEC or the Act and the rules
and regulations thereunder, will be in conformity with the reasonable
request in writing to the Company by the Initial Purchasers or with the
reasonable request in writing to the Company by one or more Broker-Dealers
who certify to the Initial Purchasers and the Company in writing that they
anticipate that they will be Exchanging Dealers or will otherwise be
required to deliver a Prospectus; and provided further that, in connection
with such application of the Shelf Registration procedures set forth in
Section 4(q) to an Exchange Offer Registration Statement, the Company
shall be obligated (x) to deal only with X.X. Xxxxxx Securities Inc.
representing such Broker-Dealers, unless X.X. Xxxxxx Securities Inc.
elects not to so act, (y) to pay the fees and expenses of only one counsel
representing such Broker-Dealers, which shall be counsel to the Initial
Purchasers unless such counsel elects not to so act and (z) to cause to be
delivered only one "cold comfort" letter, addressed to the Board of
Directors of the Company, the entities representing such Broker-Dealers
and all such Broker-Dealers, with respect to the Prospectus in the form
existing on the close of the Registered Exchange Offer and the effective
date of any post-effective amendment to the Exchange Offer Registration
Statement.
(s) The Company will use its reasonable best efforts (i) if the
Securities have been rated prior to the initial sale of such Securities,
to confirm such ratings will apply to the Securities or the New
Securities, as the case may be, covered by a Registration Statement; or
(ii) if the Securities were not previously rated, to cause the Securities
covered by a Registration Statement to be rated with at least one
nationally recognized statistical rating agency, if so requested by
Majority Holders with respect to the related Registration Statement or by
any Managing Underwriters.
(t) In the event that any Broker-Dealer shall underwrite any
Securities or participate as a member of an underwriting syndicate or
selling group or "assist in the distribution" (within the meaning of the
Rules of Fair Practice and the By-Laws of the National Association of
Securities Dealers, Inc.) thereof, whether as a Holder of such Securities
or as an underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, assist such Broker-Dealer in complying with
the requirements of such Rules and By-Laws, including, without limitation,
by:
(i) if such Rules or By-Laws shall so require, engaging a
"qualified independent underwriter" (as defined in such
Rules) to participate in the preparation of the
Registration Statement, to exercise usual standards of due
diligence with respect thereto and, if any portion of the
offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or
sales agent, to recommend the yield of such Securities;
(ii) indemnifying any such qualified independent underwriter to
the extent of the indemnification of underwriters provided
in Section 6 hereof; and
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(iii) providing such information to such Broker-Dealer as may be
required in order for such Broker-Dealer to comply with the
requirements of such Rules.
(u) The Company shall use its reasonable best efforts to take all
other steps necessary to affect the registration of the Securities or the
New Securities, as the case may be, covered by a Registration Statement.
(v) If (i) the applicable Registration Statement is not filed with
the Commission within the 90 day period specified in Section 2 or Section
3, as the case may be, (ii) the applicable Registration Statement is not
declared effective within the 180 day period specified in Section 2 or
Section 3, as the case may be, (iii) the Registered Exchange Offer is not
consummated on or prior to 210 days following the date of the original
issuance of the Securities or (iv) the Shelf Registration Statement is
filed and declared effective but, at any time prior to the earlier of the
expiration of two years from the date the Shelf Registration Statement is
declared effective and such time as all the Securities are disposed of
under the Shelf Registration Statement, the Shelf Registration Statement
shall thereafter cease to be effective or fails to be usable for its
intended purpose (at any time that the Company is obligated to maintain
the effectiveness thereof) without being succeeded within two Business
Days by a post-effective amendment which cures the failure and that is
itself immediately effective (each such event referred to in clauses (i)
through (iv), a "Registration Default"), then, from and including the date
on which any such Registration Default shall occur to, but excluding, the
date on which the Registration Default is cured, the interest rate on the
Securities or New Securities, as applicable, will be increased by .25% per
annum, plus an additional .25% per annum from and during any period a
Registration Default has continued for more than 90 days, up to a maximum
aggregate rate increase of .50% per annum.
5. Registration Expenses. The Company shall bear all expenses incurred in
connection with the performance of its obligations under Sections 2, 3 and 4
hereof and, in the event of any Shelf Registration Statement, will reimburse
the Holders for the reasonable fees and disbursements of one firm or counsel
designated by the Majority Holders to act as counsel for the Holders in
connection therewith, and, in the case of any Exchange Offer Registration
Statement, will reimburse the Initial Purchasers for the fees and disbursements
of counsel acting in connection therewith, up to a maximum of $3,000. Each
Holder shall pay all underwriting discounts and commissions and transfer taxes,
if any, relating to a sale or disposition of such Holder's Securities pursuant
to the Shelf Registration Statement.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Holder of
Securities or New Securities, as the case may be, covered by any
Registration Statement (including each Initial Purchaser and, with respect
to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer), the directors and officers of each such Holder and
each Person who controls any such Holder within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the
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Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law 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 a material
fact contained in the Registration Statement as originally filed or in any
amendment thereof, or in any preliminary Prospectus or the Prospectus, or
in any amendment thereof or supplement thereto, 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 agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will not
be liable in any case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any such Holder specifically for inclusion
therein; provided further, that the Company will not be liable for the
amount of any settlement of any claim made without its consent not
unreasonably withheld; and provided further, that as to any Registration
Statement as originally filed or in any preliminary Prospectus, this
indemnity shall not inure to the benefit of any Exchanging Dealer (or any
underwriter as provided in the next paragraph of this Section 6(a)) (any
person controlling such Exchanging Dealer (or any underwriter as provided
in the next paragraph of this Section 6(a))) on account of any loss,
claim, damage, liability or action arising from the sale of Securities to
any person by such Exchanging Dealer (or any underwriter as provided in
the next paragraph of this Section 6(a)) if that Exchanging Dealer (or any
underwriter as provided n the next paragraph of this Section 6(a)) failed
to send or give a copy of the Prospectus, as the same may be amended or
supplemented, to that person provided that sending or giving a copy of the
Prospectus to that person was required by the Act and the untrue statement
of a material fact or omission or alleged omission to state a material
fact in such Registration Statement as originally filed or in any
preliminary Prospectus was corrected in the Prospectus, unless such
failure resulted from the Company not furnishing copies of the Prospectus
to the Exchanging Dealer. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
The Company also agrees to indemnify or contribute as provided in
Section 6(d) to Losses of each or any underwriter of Securities or New
Securities, as the case may be, registered under a Shelf Registration
Statement, their directors and officers and each Person who controls such
underwriter on substantially the same basis as that of the indemnification
of the Initial Purchasers and the selling Holders provided in this Section
6(a) and shall, if requested by any Holder, enter into an underwriting
agreement reflecting such agreement, as provided in Section 4(p) hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Initial Purchaser and, with respect to any Prospectus
delivery as contemplated in Section 4(h) hereof, each Exchanging Dealer)
agrees severally and not jointly to indemnify and hold harmless the
Company each of its directors each of its officers who signs such
Registration Statement 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
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indemnity from the Company to each such Holder, but only with reference to
written information relating to such Holder furnished to the Company by or
on behalf of such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be
in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 or 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 this Section 6, notify the indemnifying party in writing of
the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b)
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 paragraph (a)
or (b) 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.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party
shall have a joint and several obligation to contribute to the aggregate
losses, claims, damages and liabilities (including legal or
- 16 -
other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which such indemnified party
may be subject in such proportion as is appropriate to reflect the
relative benefits received by such indemnifying party, on the one hand,
and such indemnified party, on the other hand, from the Initial Placement
and the Registration Statement which resulted in such Losses; provided,
however, that in no case shall any Initial Purchaser or any subsequent
Holder of any Security or New Security be responsible, in the aggregate,
for any amount in excess of the purchase discount applicable to such
Security, or in the case of a New Security, applicable to the Security
that was exchangeable into such New Security, as set forth on the cover
page of the Final Memorandum, nor shall any underwriter be responsible for
any amount in excess of the underwriting discount or commission applicable
to the securities purchased by such underwriter under the Registration
Statement which resulted in such Losses. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of such indemnifying party, on the one hand,
and such indemnified party, on the other hand, 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 sum of (x) the total net proceeds from the
Initial Placement (before deducting expenses) as set forth on the cover
page of the Final Memorandum and (y) the total amount of additional
interest which the Company was not required to pay as a result of
registering the securities covered by the Registration Statement which
resulted in such Losses. Benefits received by the Initial Purchasers shall
be deemed to be equal to the total purchase discounts as set forth on the
cover page of the Final Memorandum, and benefits received by any other
Holders shall be deemed to be equal to the value of receiving Securities
or New Securities, as applicable, registered under the Act. Benefits
received by any underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of
the Prospectus forming a part of the Registration Statement which resulted
in such Losses. Relative fault shall be determined by reference to, among
other things, whether any untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information provided by the indemnifying party, on the one hand, or by
the indemnified party, on the other hand, the intent of the parties and
their relative knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The parties agree that it
would not be just and equitable if contribution were determined by pro
rata allocation (even if the Holders were treated as one entity for such
purpose) or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), 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 6, each Person
who controls a Holder within the meaning of either the Act or the Exchange
Act and each director, officer, employee and agent of such Holder shall
have the same rights to contribution as such Holder, and each Person who
controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
- 17 -
Statement and each 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 (d).
(e) The provisions of this Section 6 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder
or the Company or any of the officers, directors or controlling Persons
referred to in this Section 6 hereof, and will survive the sale by a
Holder of securities covered by a Registration Statement.
7. Underwritten Registrations.
(a) If any of the Securities or New Securities, as the case may be,
covered by any Shelf Registration Statement is to be sold in an
underwritten offering, the Managing Underwriters shall be selected by the
Majority Holders.
(b) No Person may participate in any underwritten offering pursuant
to any Shelf Registration Statement, unless such Person (i) agrees to sell
such Person's Securities or New Securities, as the case may be, on the
basis reasonably provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and (ii)
completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into,
any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders herein or otherwise conflicts with the provisions
hereof.
9. Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Majority Holders (or, after the consummation of any Registered Exchange Offer
in accordance with Section 2 hereof, of New Securities); provided that, with
respect to any matter that directly or indirectly affects the rights of any
Initial Purchaser hereunder, the Company shall obtain the written consent of
each such Initial Purchaser against which such amendment, qualification,
supplement, waiver or consent is to be effective. Notwithstanding the foregoing
(except the foregoing proviso), a waiver or consent to departure from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Securities or New Securities, as the case may be, are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by the Majority
Holders, determined on the basis of Securities or New Securities, as the case
may be, being sold rather than registered under such Registration Statement.
10. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier or air courier guaranteeing overnight delivery:
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(a) if to a Holder, at the most current address given by such holder
to the Company in accordance with the provisions of this Section, which
address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Indenture, with a copy in
like manner to X.X. Xxxxxx Securities Inc.;
(b) if to you, initially at the respective addresses set forth in the
Purchase Agreement; and
(c) if to the Company, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Initial Purchasers or the Company by notice to the other
parties may designate additional or different addresses for subsequent notices
or communications.
11. Successors. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including,
without the need for an express assignment or any consent by the Company
thereto, subsequent Holders of Securities and the New Securities. The Company
hereby agrees to extend the benefits of this Agreement to any Holder of
Securities and the New Securities, and any such Holder may specifically enforce
the provisions of this Agreement as if an original party hereto.
12. Counterparts. This agreement may be in signed counterparts, each of
which shall an original and all of which together shall constitute one and the
same agreement.
13. Headings. The headings used herein are for convenience only and shall
not affect the construction hereof.
14. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed in the State of New York.
15. Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
16. Securities Held by the Company, etc. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities or New
Securities is required hereunder, Securities or New Securities, as applicable,
held by the Company or its Affiliates (other than subsequent Holders of
Securities or New Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Securities or New
Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Initial Purchasers.
Very truly yours,
LIMITED BRANDS, INC.
By: /s/ V. Xxx Xxxxxx
---------------------------------
Name: V. Xxx Xxxxxx
Title: Exec VP & CFO
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
For itself and the other
several Initial Purchasers.
- 20 -
ANNEX A
Each Broker-Dealer that receives New Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a Broker-Dealer in connection
with resales of New Securities received in exchange for Securities where such
Securities were acquired by such Broker-Dealer as a result of market-making
activities or other trading activities. The Company has agreed that, starting
on the Expiration Date (as defined herein) and ending on the close of business
six months after the Expiration Date, it will make this Prospectus available to
any Broker-Dealer for use in connection with any such resale. See "Plan of
Distribution".
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ANNEX B
Each Broker-Dealer that receives New Securities for its own
account in exchange for Securities, where such Securities were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such New Securities. See "Plan of Distribution".
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ANNEX C
1. PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of New Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that, starting on the Expiration Date and ending on the close of business six
months after the Expiration Date, it will make this Prospectus, as amended or
supplemented, available to any Broker-Dealer for use in connection with any
such resale. In addition, until __________, 200[3], all dealers effecting
transactions in the New Securities may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of
New Securities by brokers-dealers. New Securities received by Broker-Dealers
for their own account pursuant to the Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the New Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such Broker-Dealer and/or the purchasers of any such New
Securities. Any Broker-Dealer that resales New Securities that were received by
it for its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such New Securities may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit of any
such resale of New Securities and any commissions or concessions received by
any such Persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that by acknowledging that it
will deliver and by delivering a prospectus, a Broker-Dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of six months after the Expiration Date, the
Company will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any Broker-Dealer that requests
such documents in the Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Exchange Offer (including the expenses of one counsel
for the holder of the Securities) other than commissions or concessions of any
brokers or dealers and will indemnify the holders of the Securities (including
any Broker-Dealers) against certain liabilities, including liabilities under
the Securities Act.
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ANNEX D
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES
OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name ______________________________________
Address: ______________________________________
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any Person to participate in
a distribution of the New Securities. If the undersigned is a Broker-Dealer
that will receive New Securities for its own account in exchange for
Securities, it represents that the Securities to be exchange for New Securities
were acquired by it as a result of market-making activities or other trading
activities and acknowledges that it will deliver a prospectus in connection
with any resale of such New Securities; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
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