STARWOOD HOTELS & RESORTS WORLDWIDE, INC. $250,000,000 7.150% Senior Notes due 2019 Underwriting Agreement
Exhibit
1.1
STARWOOD HOTELS & RESORTS WORLDWIDE, INC.
$250,000,000 7.150% Senior Notes due 2019
November 5, 2009
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the
several Underwriters listed
in Schedule 1 hereto
several Underwriters listed
in Schedule 1 hereto
Ladies and Gentlemen:
Starwood Hotels & Resorts Worldwide, Inc., a Maryland corporation (the “Company”), proposes to
issue and sell to the several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for
whom you are acting as representatives (the “Representatives”), $250,000,000 in principal amount of
its 7.150% Senior Notes due 2019 (the “Securities”). The Securities will be issued pursuant to an
Indenture, dated as of September 13, 2007 (the “Base Indenture”), as supplemented by Supplemental
Indenture No. 1, dated as of September 13, 2007, between the Company and U.S. Bank National
Association, as trustee (the “Trustee”), Supplemental Indenture No. 2, dated as of May 23, 2008,
between the Company and the Trustee, Supplemental Indenture No. 3, dated as of May 7, 2009, between
the Company and the Trustee, and as further supplemented by Supplemental Indenture No. 4, to be
dated as of November 20, 2009 (the “Supplemental Indenture”), between the Company and the Trustee.
The Base Indenture, as supplemented by the Supplemental Indenture, is referred to herein as the
“Indenture.”
The Company hereby confirms its agreement with the several Underwriters concerning the
purchase and sale of the Securities, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration
statement on Form S-3 (File No. 333-145894), including a prospectus, relating, among other things,
to the Securities. Such registration statement, including the information, if any, deemed pursuant
to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the
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time of its effectiveness (“Rule 430 Information”), is referred to herein as the “Registration
Statement”; and as used herein, the term “Preliminary Prospectus” means each prospectus used in
connection with the offering of the Securities that omits Rule 430 Information, and the term
“Prospectus” means the final prospectus and any final prospectus supplement(s) in the form first
used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act)
in connection with confirmation of sales of the Securities. If the Company has filed an
abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the “Rule 462
Registration Statement”), then any reference herein to the term “Registration Statement” shall be
deemed to include such Rule 462 Registration Statement. Any reference in this Agreement to the
Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under
the Securities Act, as of the effective date of the Registration Statement or the date of such
Preliminary Prospectus or the Prospectus, as the case may be and any reference to “amend,”
“amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents filed after such date under
the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Exchange Act”) that are deemed to be incorporated by reference
therein. Capitalized terms used but not defined herein shall have the meanings given to such terms
in the Registration Statement and the Prospectus.
At or prior to the time when sales of the Securities were first made (the “Time of Sale”), the
Company had prepared the following information (collectively with the information referred to in
the next succeeding clause, the “Time of Sale Information”): a Preliminary Prospectus dated
November 5, 2009 and each “free-writing prospectus” (as defined pursuant to Rule 405 under the
Securities Act) listed on Annex D hereto as constituting part of the Time of Sale Information.
2. Purchase of the Securities by the Underwriters. (a) The Company agrees to
issue and sell the Securities to the several Underwriters as provided in this Agreement, and each
Underwriter, on the basis of the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the
Company the respective principal amount of the Securities set forth opposite such Underwriter’s
name in Schedule 1 hereto at a price equal to 96.434% of the principal amount thereof plus accrued
interest, if any, from November 20, 2009 to the Closing Date (as defined below). The Company will
not be obligated to deliver any of the Securities except upon payment for all the Securities to be
purchased as provided herein.
(b) The Company understands that the Underwriters intend to make a public offering of the
Securities as soon after the effectiveness of this Agreement as in the judgment of the
Representatives is advisable, and initially to offer the Securities on the terms set forth in the
Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell
Securities to or through any affiliate of an Underwriter
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and that any such affiliate may offer and sell Securities purchased by it to or through any
Underwriter.
(c) Payment for and delivery of the Securities will be made at the offices of Xxxxxx & Xxxxxxx
LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 A.M., New York City time, on November 20,
2009, or at such other time or place on the same or such other date, not later than the fifth
business day thereafter, as the Representatives and the Company may agree upon in writing. The
time and date of such payment and delivery is referred to herein as the “Closing Date.”
(d) Payment for the Securities shall be made by wire transfer in immediately available funds
to the account(s) specified by the Company to the Representatives against delivery to the nominee
of The Depository Trust Company, for the account of the Underwriters, of one or more global notes
representing the Securities (collectively, the “Global Note”), with any transfer taxes payable in
connection with the sale of the Securities duly paid by the Company. The Global Note will be made
available for inspection by the Representatives not later than 1:00 P.M., New York City time, on
the business day prior to the Closing Date.
(e) The Company acknowledges and agrees that the Underwriters are acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect to the offering of
Securities contemplated hereby (including in connection with determining the terms of the offering)
and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person.
Additionally, neither of the Representatives nor any other Underwriter is advising the Company or
any other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company.
3. Representations and Warranties of the Company. The Company represents and warrants
to each Underwriter, as of the date hereof, that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of
filing thereof, complied in all material respects with the Securities Act and did not contain any
untrue statement of a material fact or omit to state a material fact (other than Rule 430
Information) 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; provided that
the Company makes no representation and warranty with respect to any statements or omissions made
in reliance upon and in conformity with information relating to any
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Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in any Preliminary Prospectus.
(b) Time of Sale Information. The Time of Sale Information, at the Time of Sale did not, and
at the Closing Date will not, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or omissions made in reliance upon and
in conformity with information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use in such Time of Sale Information.
No statement of material fact included in the Prospectus has been omitted from the Time of Sale
Information and no statement of material fact included in the Time of Sale Information that is
required to be included in the Prospectus has been omitted therefrom.
(c) Issuer Free Writing Prospectus. The Company (including its agents and representatives,
other than the Underwriters in their capacity as such) has not prepared, made, used, authorized,
approved or referred to and will not prepare, make, use, authorize, approve or refer to any
“written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer
to sell or solicitation of an offer to buy the Securities (each such communication by the Company
or its agents and representatives (other than a communication referred to in clauses (i), (ii) and
(iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities
Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex D
hereto as constituting the Time of Sale Information and (v) any electronic road show or other
written communications, in each case approved in writing in advance by the Representatives (such
approval not to be unreasonably withheld). Each such Issuer Free Writing Prospectus complied in
all material respects with the Securities Act, has been or will be (within the time period
specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby)
and, when taken together with the Preliminary Prospectus accompanying such Issuer Free Writing
Prospectus, at the Time of Sale did not, and at the Closing Date will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided that the Company makes no representation and warranty with respect to any
statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.
(d) Registration Statement and Prospectus. The Registration Statement is an “automatic shelf
registration statement” as defined under Rule 405 of the Securities Act that has been filed with
the Commission not earlier than three years prior to the date hereof; and no notice of objection of
the Commission to the use of such registration statement or any post-effective amendment thereto
pursuant to Rule
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401(g)(2) under the Securities Act has been received by the Company. No order suspending the
effectiveness of the Registration Statement has been issued by the Commission and no proceeding for
that purpose or pursuant to Section 8A of the Securities Act against the Company or related to the
offering has been initiated or overtly threatened by the Commission; as of the applicable effective
date of the Registration Statement and any amendment thereto, the Registration Statement complied
and will comply in all material respects with the Securities Act and the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the
“Trust Indenture Act”), and did not and will not 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 not misleading; and as of the date of the Prospectus and any amendment or
supplement thereto and as of the Closing Date, the Prospectus will not 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; provided that the Company makes no representation and warranty with respect
to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or
omissions made in reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the Representatives expressly for
use in the Registration Statement and the Prospectus and any amendment or supplement thereto.
(e) Incorporated Documents. The documents incorporated by reference in the Registration
Statement, the Prospectus and the Time of Sale Information, when they were filed with the
Commission conformed in all material respects to the requirements of the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the
“Exchange Act”) and none of such documents contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading.
(f) Financial Statements. The financial statements and the related notes thereto included or
incorporated by reference in the Registration Statement, the Time of Sale Information and the
Prospectus comply in all material respects with the applicable requirements of the Securities Act,
and present fairly the financial position of the Company and its consolidated subsidiaries as of
the dates indicated and the results of their operations and the changes in their cash flows for the
periods specified; such financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the periods covered
thereby, and the supporting schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated therein; and the other financial
information included or incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus has been derived from the accounting records of the Company and its
subsidiaries and presents fairly the information shown thereby.
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(g) No Material Adverse Change. Since the date of the most recent financial statements of the
Company included or incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus, (i) there has not been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries, or any dividend or distribution of any kind
declared, set aside for payment, paid or made by the Company on any class of capital stock, or any
change, or any development involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders’ equity or results of operations of the Company and
its subsidiaries that would, individually or in the aggregate, have a Material Adverse Effect (as
defined below); (ii) neither the Company nor any of its subsidiaries has entered into any
transaction or agreement that is material to the Company and its subsidiaries taken as a whole or
incurred any liability or obligation, direct or contingent, that is material to the Company and its
subsidiaries taken as a whole; and (iii) neither the Company nor any of its subsidiaries has
sustained any loss or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor disturbance or dispute or any action, order
or decree of any court or arbitrator or governmental or regulatory authority, except in each case
as otherwise disclosed in the Registration Statement, the Time of Sale Information and the
Prospectus, that would, individually or in the aggregate, (x) have a Material Adverse Effect or (y)
materially interfere with, adversely affect or question the validity of (A) the execution and
delivery of the Indenture or the issuance of the Securities or the consummation of this Agreement
and the transactions contemplated hereby or (B) the performance by the Company and each of its
subsidiaries of their respective agreements and obligations under the Transaction Documents (as
defined below) or of the transactions contemplated thereby. As used herein, “Material Adverse
Effect” shall mean any effect or group of related or unrelated effects that would be reasonably
expected, individually or in the aggregate, to result in a material adverse effect on the assets,
properties, business, results of operations or financial condition of the Company and its
subsidiaries, taken as a whole.
(h) Organization and Good Standing. The Company and each of its subsidiaries have been duly
organized and are validly existing and in good standing under the laws of their respective
jurisdictions of organization, are duly qualified to do business and are in good standing in each
jurisdiction in which their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and authority necessary to
own or hold their respective properties and to conduct the businesses in which they are engaged,
except where the failure to be so qualified, in good standing or have such power or authority would
not, individually or in the aggregate, have a Material Adverse Effect.
(i) Capitalization. The Company has an authorized capitalization as set forth in the
Registration Statement, the Time of Sale Information and the Prospectus under the heading
“Capitalization” and all the outstanding shares of capital stock or other equity interests of the
Company have been duly and validly authorized and issued, are fully paid and non-assessable (except
as otherwise described in the Registration Statement, the Time of Sale Information and the
Prospectus) and are owned directly or indirectly by the Company, free and clear of any lien,
charge,
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encumbrance, security interest, restriction on voting or transfer or any other claim of any
third party.
(j) Due Authorization. The Company has full right, power and authority to execute and deliver
this Agreement, the Securities and the Indenture (collectively, the “Transaction Documents”) and to
perform its obligations hereunder and thereunder; and all action required to be taken for the due
and proper authorization, execution and delivery of each of the Transaction Documents and the
consummation of the transactions contemplated thereby has been duly and validly taken.
(k) The Indenture.
(i) The Base Indenture has been and the Supplemental Indenture will have been duly authorized,
executed and delivered by the Company and upon effectiveness of the Registration Statement was or
will have been duly qualified under the Trust Indenture Act; and
(ii) The Base Indenture constitutes, and the Supplemental Indenture will constitute, when duly
executed and delivered in accordance with its terms by each of the parties thereto, a valid and
legally binding agreement of the Company enforceable against the Company in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally
or by equitable principles relating to enforceability (collectively, the “Enforceability
Exceptions”).
(l) The Securities. The Securities have been duly authorized by the Company and, when duly
executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided
herein, will be duly and validly issued and outstanding and will constitute valid and legally
binding obligations of the Company enforceable against the Company in accordance with their terms,
subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(m) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered
by the Company.
(n) Descriptions of the Transaction Documents. Each Transaction Document conforms in all
material respects to the description thereof contained in the Registration Statement, the Time of
Sale Information and the Prospectus.
(o) No Violation or Default. Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or bylaws or similar organizational documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or
to which any of the property or assets of the Company or any of its subsidiaries is subject; or
(iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental
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or regulatory authority, except, in the case of clause (i) solely as it relates to
subsidiaries of the Company and clauses (ii) and (iii) above, for any such default or violation
that would not, individually or in the aggregate, have a Material Adverse Effect.
(p) No Conflicts. The execution, delivery and performance by the Company of each of the
Transaction Documents, the issuance and sale of the Securities and compliance by the Company with
the terms thereof and the consummation of the transactions contemplated by the Transaction
Documents will not (i) conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its subsidiaries
pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, (ii) result in any violation of the provisions of the charter or
by-laws of the Company, (iii) result in any violation of the provisions of the charter or by-laws
or similar organizational documents of the Company’s subsidiaries or (iv) result in the violation
of any law or statute or any judgment, order, rule or regulation of any court or arbitrator having
jurisdiction over the Company or any of its subsidiaries or governmental or regulatory authority,
except, in the case of clauses (i), (iii) and (iv) above, for any such conflict, breach, violation
or default that would not, individually or in the aggregate, have a Material Adverse Effect.
(q) No Consents Required. No consent, approval, authorization, order, registration or
qualification (collectively, “Consents”) of or with any court or arbitrator or governmental or
regulatory authority is required for the execution, delivery and performance by the Company of each
of the Transaction Documents, the issuance and sale of the Securities and compliance by the Company
with the terms thereof and the consummation of the transactions contemplated by the Transaction
Documents, except for the registration of the Securities under the Securities Act, the
qualification of the Indenture under the Trust Indenture Act, such Consents as may be required
under applicable state securities laws in connection with the purchase and distribution of the
Securities by the Underwriters and such Consents which the failure to obtain or possess would not,
individually or in the aggregate, have a Material Adverse Effect.
(r) Legal Proceedings. Except as described in the Registration Statement, the Time of Sale
Information and the Prospectus, there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property or assets of the Company or
any of its subsidiaries is subject that are likely to be determined adversely to the Company or any
of its subsidiaries and if so determined would have a Material Adverse Effect, and to the best of
the Company’s knowledge, no such proceedings are overtly threatened or contemplated by governmental
authorities or threatened by others; and (i) there are no current or pending legal, governmental or
regulatory actions, suits or proceedings that are required under the Securities Act to be described
in the Registration Statement or the Prospectus that are not so described in the Registration
Statement, the Time of Sale Information and the Prospectus and (ii) there are no statutes,
regulations, contracts or
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other documents that are required under the Securities Act to be filed as exhibits to the
Registration Statement or described in the Registration Statement and the Prospectus that are not
so filed as exhibits to the Registration Statement or described in the Registration Statement, the
Time of Sale Information and the Prospectus.
(s) Independent Accountants. Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are an independent registered public accounting
firm with respect to the Company and its subsidiaries within the applicable rules and regulations
adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as
required by the Securities Act.
(t) Title to Real and Personal Property. The Company and each of its subsidiaries have good
and marketable title in fee simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens, encumbrances and defects
except such as are described in the Registration Statement, the Time of Sale Information and the
Prospectus or such as would not, individually or in the aggregate, have a Material Adverse Effect;
and all real property and buildings held under lease by the Company and its subsidiaries are held
by them under valid, subsisting and enforceable leases, with such exceptions as would not,
individually or in the aggregate, have a Material Adverse Effect.
(u) Title to Intellectual Property. The Company and its subsidiaries own or possess adequate
rights to use all patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights, licenses and know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential information, systems
or procedures) necessary for the conduct of their respective businesses, except where failure to
own or possess such rights would not, individually or aggregate, have a Material Adverse Effect;
and the conduct of their respective businesses will not conflict with, and neither the Company nor
any of its subsidiaries have received any notice of any claim of conflict with, any such rights of
others, except as would not, individually or in the aggregate, have a Material Adverse Effect.
(v) No Undisclosed Relationships. To the Company’s best knowledge, no relationship, direct or
indirect, exists between or among the Company or any of its subsidiaries, on the one hand, and the
directors, officers, stockholders, customers or suppliers of the Company or any of its
subsidiaries, on the other, that is required by the Securities Act to be described in the
Registration Statement and the Prospectus and that is not so described in such documents and in the
Time of Sale Information.
(w) Investment Company Act. The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described in the Registration
Statement, the Time of Sale Information and the Prospectus, will not be required to register as an
“investment company” within the meaning of the Investment Company Act of 1940, as amended, and the
rules and regulations of the Commission thereunder (collectively, “Investment Company Act”).
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(x) Taxes. The Company and its subsidiaries have paid all federal, state, local and foreign
taxes and filed all tax returns required to be paid or filed through the date hereof, except as
would not, individually or in the aggregate, have a Material Adverse Effect; and except as
otherwise disclosed in the Registration Statement, the Time of Sale Information and the Prospectus,
there is no tax deficiency that has been, or could reasonably be expected to be, asserted against
the Company or any of its subsidiaries or any of their respective properties or assets that would,
individually or in the aggregate, have a Material Adverse Effect.
(y) Licenses and Permits. The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or the
conduct of their respective businesses as described in the Registration Statement, the Time of Sale
Information and the Prospectus, except where the failure to possess or make the same would not,
individually or in the aggregate, have a Material Adverse Effect.
(z) No Labor Disputes. No labor disturbance by or dispute with employees of the Company or
any of its subsidiaries exists or, to the best knowledge of the Company, is imminent, except as
would not, individually or in the aggregate, have a Material Adverse Effect.
(aa) Compliance With Environmental Laws. Except as otherwise set forth in the Registration
Statement, the Time of Sale Information and the Prospectus, to the knowledge of the Company, (a)
the Company and its subsidiaries are in compliance with all applicable existing federal, state and
foreign laws and regulations relating to protection of human health or the environment or imposing
liability or standards of conduct concerning any Hazardous Material (collectively, “Environmental
Laws”), except for such instances of noncompliance which in the aggregate would not result in a
Material Adverse Effect and (b) neither the Company nor any of its subsidiaries has any liability
under any Environmental Law that in the aggregate would have a Material Adverse Effect. The term
“Hazardous Material” means (i) any “hazardous substance” as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, (ii) any “hazardous
waste” as defined by the Resource Conservation and Recovery Act, as amended, (iii) any petroleum or
petroleum product, (iv) any polychlorinated biphenyl and (v) any pollutant or contaminant or
hazardous, dangerous or toxic chemical, material, waste or substance regulated under or within the
meaning of any Environmental Law.
(bb) Compliance With ERISA. Except as otherwise set forth in the Registration Statement, the
Time of Sale Information and the Prospectus, neither the Company nor any of its subsidiaries has
violated any provisions of the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder (“ERISA”), except for
such violations which in the aggregate would not have a Material Adverse Effect.
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(cc) Disclosure Controls. The Company and its subsidiaries maintain an effective system of
“disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is
designed to ensure that information required to be disclosed by the Company in reports that it
files or submits under the Exchange Act is recorded, processed, summarized and reported within the
time periods specified in the Commission’s rules and forms, including controls and procedures
designed to ensure that such information is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding required disclosure. The Company and
its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and
procedures as required by Rule 13a-15 of the Exchange Act.
(dd) Accounting Controls. The Company and its subsidiaries maintain systems of “internal
control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that provide
reasonable assurance that (i) transactions are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with respect to any
differences. Except as disclosed in the Registration Statement, the Time of Sale Information and
the Prospectus, as of December 31, 2008, there were no material weaknesses in the Company’s
internal controls.
(ee) Insurance. The Company and its subsidiaries have insurance covering their respective
properties, operations, personnel and businesses, including business interruption insurance, which
insurance is in amounts and insures against such losses and risks, in the Company’s reasonable
judgment, as are adequate to protect the Company and its subsidiaries and their respective
businesses, except where failure to have such insurance would not, individually or in the
aggregate, have a Material Adverse Effect; and neither the Company nor any of its subsidiaries has
(i) received notice from any insurer or agent of such insurer that capital improvements or other
expenditures are required or necessary to be made in order to continue such insurance or (ii) any
reason to believe that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage at reasonable cost from similar insurers as may
be necessary to continue its business, except as would not, individually or in the aggregate, have
a Material Adverse Effect.
(ff) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the best
knowledge of the Company, any director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or is in violation of any provision of
the Foreign
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Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(gg) Xxxxxxxx-Xxxxx Act. There is and has been no failure on the part of the Company or, to
the best knowledge of the Company, any of the Company’s directors or officers, in their capacities
as such, to comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”), including Section 402
related to loans and Sections 302 and 906 related to certifications.
(hh) Status under the Securities Act. The Company is not an ineligible issuer and is a
well-known seasoned issuer, in each case as defined under the Securities Act, in each case at the
times specified in the Securities Act in connection with the offering of the Securities.
(ii) No Conflict with Money Laundering Laws. The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and
regulations thereunder and any related or similar rules, regulations or guidelines issued,
administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and
no action, suit or proceeding by or before any court or governmental agency, authority or body or
any arbitrator involving the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(jj) No Conflict with OFAC Laws. Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any
of its subsidiaries is currently subject to any United States sanctions administered by the Office
of Foreign Assets Control of the United States Treasury Department (“OFAC”); and the Company will
not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds, to any subsidiary, joint venture partner or other person or entity, for
the purpose of financing the activities of any person currently subject to any United States
sanctions administered by OFAC.
12
4. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Required Filings. The Company will file the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act,
will file any Issuer Free Writing Prospectus (including the Term Sheet in the form of Annex E
hereto) to the extent required by Rule 433 under the Securities Act; and will file promptly all
reports and any definitive proxy or information statements required to be filed by the Company with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a prospectus is required in connection
with the offering or sale of the Securities; and the Company will furnish copies of the Prospectus
and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the
Underwriters in New York City prior to 10:00 A.M., New York City time, on the business day next
succeeding the date of this Agreement in such quantities as the Representatives may reasonably
request. The Company will pay the registration fees for this offering within the time period
required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso
therein) and in any event prior to the Closing Date.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to the Representatives,
two conformed copies of the Registration Statement as originally filed and each amendment thereto,
in each case including all exhibits and consents filed therewith and documents incorporated by
reference therein; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement
as originally filed and each amendment thereto, in each case including all exhibits and consents
filed therewith and (B) during the Prospectus Delivery Period (as defined below), as many copies of
the Prospectus (including all amendments and supplements thereto and documents incorporated by
reference therein) and each Issuer Free Writing Prospectus as the Representatives may reasonably
request. As used herein, the term “Prospectus Delivery Period” means such period of time after the
first date of the public offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by law to be delivered (or
required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the
Securities by any Underwriter or dealer.
(c) Amendments or Supplements; Issuer Free Writing Prospectuses. Before making, preparing,
using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and
before filing any amendment or supplement to the Registration Statement or the Prospectus, the
Company will furnish to the Representatives and counsel for the Underwriters a copy of the proposed
Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use,
authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such
proposed amendment or supplement to which the Representatives reasonably object in writing.
13
(d) Notice to the Representatives. Until the completion of the Prospectus Delivery Period,
the Company will advise the Representatives promptly, and confirm such advice in writing, (i) when
any amendment to the Registration Statement has been filed or becomes effective; (ii) when any
supplement to the Prospectus or any amendment to the Prospectus or any Issuer Free Writing
Prospectus has been filed; (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or the receipt of any
comments from the Commission relating to the Registration Statement or any other request by the
Commission for any additional information; (iv) of the issuance by the Commission of any order
suspending the effectiveness of the Registration Statement or preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or the initiation or threatening of any proceeding for
that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event
within the Prospectus Delivery Period as a result of which the Prospectus, the Time of Sale
Information or any Issuer Free Writing Prospectus as then amended or supplemented would include 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 existing
when the Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is
delivered to a purchaser, not misleading; (vi) of the receipt by the Company of any notice of
objection of the Commission to the use of the Registration Statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by
the Company of any notice with respect to any suspension of the qualification of the Securities for
offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such
purpose; and the Company will use its commercially reasonable efforts to prevent the issuance of
any such order suspending the effectiveness of the Registration Statement, preventing or suspending
the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification of the
Securities and, if any such order is issued, will obtain as soon as possible the withdrawal
thereof.
(e) Time of Sale Information. If at any time prior to the Closing Date (i) any event shall
occur or condition shall exist as a result of which the Time of Sale Information as then amended or
supplemented would include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the circumstances, not
misleading or (ii) it is necessary to amend or supplement the Time of Sale Information to comply
with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to
the Underwriters and to such dealers as the Representatives may designate, such amendments or
supplements to the Time of Sale Information as may be necessary so that the statements in the Time
of Sale Information as so amended or supplemented will not, in the light of the circumstances, be
misleading or so that the Time of Sale Information will comply with law.
(f) Ongoing Compliance. If during the Prospectus Delivery Period (i) any event shall occur or
condition shall exist as a result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or
14
omit to state any material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances existing when the Prospectus is delivered to
a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply
with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission and furnish to the Underwriters and to
such dealers as the Representatives may designate, such amendments or supplements to the Prospectus
as may be necessary so that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
(g) Blue Sky Compliance. The Company will qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request
and will continue such qualifications in effect so long as required for distribution of the
Securities; provided that the Company shall not be required to (i) qualify as a foreign
corporation or other entity or as a dealer in securities in any such jurisdiction where it would
not otherwise be required to so qualify, (ii) file any general consent to service of process in any
such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not
otherwise so subject.
(h) Earning Statement. The Company will make generally available to its security holders and
the Representatives as soon as practicable an earning statement that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering
a period of at least twelve months beginning with the first fiscal quarter of the Company occurring
after the “effective date” (as defined in Rule 158) of the Registration Statement.
(i) Clear Market. During the period from the date hereof through and including the Closing
Date, the Company will not, without the prior written consent of the Representatives, offer, sell,
contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Company
and having a tenor of more than one year.
(j) Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities
as described in the Registration Statement, the Time of Sale Information and the Prospectus under
the heading “Use of proceeds.”
(k) No Stabilization. The Company will not take, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Securities.
(l) Record Retention. The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission
in accordance with Rule 433 under the Securities Act.
15
5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus,” as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release issued by the
Company) other than (i) a free writing prospectus that, solely as a result of use by such
underwriter, would not trigger an obligation to file such free writing prospectus with the
Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex D or
prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), or
(iii) any free writing prospectus prepared by such underwriter and approved by the Company in
advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an
“Underwriter Free Writing Prospectus”). Notwithstanding the foregoing, the Company consents to the
Underwriters’ use of a term sheet substantially in the form of Annex E hereto without any further
consent of the Company.
(b) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company if any such proceeding against it is
initiated during the Prospectus Delivery Period).
6. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase Securities on the Closing Date as provided herein is subject to the performance by the
Company of its covenants and other obligations hereunder and to the following additional
conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule
401(g)(2) or pursuant to Section 8A under the Securities Act shall be pending before or overtly
threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have
been timely filed with the Commission under the Securities Act (in the case of a Issuer Free
Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance
with Section 4(a) hereof; and all requests by the Commission for inclusion of additional
information in the Registration Statement or Prospectus shall have been complied with to the
reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of the Closing Date;
and the statements of the Company and its officers made in any certificates delivered pursuant to
this Agreement shall be true and correct on and as of the Closing Date.
(c) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the execution and
delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the
Securities or any other debt securities or preferred
16
stock of or guaranteed by the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization,” as such term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act and (ii) no such organization shall have publicly announced that
it has under surveillance or review, or has changed its outlook with respect to, its rating of the
Securities or of any other debt securities or preferred stock of or guaranteed by the Company or
any of its subsidiaries (other than an announcement with positive implications of a possible
upgrading).
(d) No Material Adverse Change. No event or condition of a type described in Section 3(g)
hereof shall have occurred or shall exist, which event or condition is not described in the Time of
Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any
amendment or supplement thereto) and the effect of which in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the
Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale
Information and the Prospectus.
(e) Officer’s Certificate. The Representatives shall have received on and as of the Closing
Date a certificate of an executive officer of the Company who has specific knowledge of the
Company’s financial matters and is satisfactory to the Representatives (i) confirming that such
officer has carefully reviewed the Registration Statement, the Time of Sale Information and the
Prospectus and, to the best knowledge of such officer, the representations set forth in Sections
3(b) and 3(d) hereof are true and correct, (ii) confirming that the other representations and
warranties of the Company in this Agreement are true and correct and that the Company has complied
with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date and (iii) to the effect set forth in paragraphs (a), (c) and (d)
above.
(f) Comfort Letters. On the date of this Agreement and on the Closing Date, Ernst & Young LLP
shall have furnished to the Representatives, at the request of the Company, letters, dated the
respective dates of delivery thereof and addressed to the Underwriters, in form and substance
reasonably satisfactory to the Representatives, containing statements and information of the type
customarily included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information contained or incorporated by reference in
the Registration Statement, the Time of Sale Information and the Prospectus.
(g) Opinion and 10b-5 Statement of Counsel for the Company. Weil, Gotshal & Xxxxxx LLP,
counsel for the Company, shall have furnished to the Representatives, at the request of the
Company, their written opinion and 10b-5 Statement, dated the Closing Date and addressed to the
Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect
set forth in Annex A hereto.
(h) Opinion of Special Maryland Counsel for the Company. Xxxxxxx LLP, special Maryland
counsel for the Company, shall have furnished to the
17
Representatives, at the request of the Company, their written opinion, dated the Closing Date
and addressed to the Underwriters, in form and substance reasonably satisfactory to the
Representatives, to the effect set forth in Annex B hereto.
(i) Opinion of In-house Counsel for the Company. Xxxxxxx X. Xxxxxx, Chief Administrative
Officer and General Counsel of the Company, shall have furnished to the Representatives, at the
request of the Company, his written opinion, dated the Closing Date and addressed to the
Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect
set forth in Annex C hereto.
(j) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representatives shall
have received on and as of the Closing Date an opinion and 10b-5 Statement of Xxxxxx & Xxxxxxx LLP,
counsel for the Underwriters, with respect to such matters as the Representatives may reasonably
request, and such counsel shall have received such documents and information as they may reasonably
request to enable them to pass upon such matters.
(k) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or
sale of the Securities; and no injunction or order of any federal, state or foreign court shall
have been issued that would, as of the Closing Date, prevent the issuance or sale of the
Securities.
(l) Additional Documents. On or prior to the Closing Date, the Company shall have furnished
to the Representatives such further certificates and documents as the Representatives may
reasonably request.
(m) CFO Certificate. The Representatives shall have received on and as of the date hereof a
certificate of the chief financial officer of the Company that is reasonably satisfactory to the
Representatives with respect to certain financial information contained in the Schedule 14A filed
by the Company with the Commission on March 26, 2009, incorporated by reference in the Preliminary
Prospectus and the Prospectus.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
18
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, legal fees and other expenses reasonably incurred in connection with any suit, action
or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several,
that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary in order to make the
statements therein, not misleading, or (ii) any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus or any Time of Sale Information, or caused by any omission or alleged omission
to state therein a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each case except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in conformity with any
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use therein.
(b) Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who signed the Registration
Statement 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 to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise
out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the Representatives expressly for use in the
Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus or any Time of Sale Information, it being understood and agreed that the only
such information consists of the following: the information contained in paragraphs 3 and 6
appearing under the heading “Underwriting” in the Prospectus.
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such
person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that
the failure to notify the Indemnifying Person shall not relieve it from any liability that it may
have under this Section 7 except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights
19
or defenses) by such failure; and provided, further, that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it may have to an
Indemnified Person otherwise than under this Section 7. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof,
the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who
shall not, without the consent of the Indemnified Person, be counsel to the Indemnifying Person) to
represent the Indemnified Person and any others entitled to indemnification pursuant to Section 7
that the Indemnifying Party may designate in such proceeding and shall pay the fees and expenses of
such proceeding and shall pay the reasonable fees and expenses of counsel related to such
proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it that are different
from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any
such proceeding (including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interest between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be
reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates,
directors and officers and any control persons of such Underwriter shall be designated in writing
by the Representatives and any such separate firm for the Company, its directors, its officers who
signed the Registration Statement and any control persons of the Company shall be designated in
writing by the Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is entered into more than 30
days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such request prior to the date
of such settlement. No Indemnifying Person shall, without the written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnification could have been sought
hereunder by such Indemnified Person, unless such settlement (x) includes an unconditional release
of such Indemnified Person, in form and substance reasonably
20
satisfactory to such Indemnified Person, from all liability on claims that are the subject
matter of such proceeding and (y) does not include any statement as to or any admission of fault,
culpability or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (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) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) 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 that 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 respective
proportions as the net proceeds (before deducting expenses) received by the Company from the sale
of the Securities and the total underwriting discounts and commissions received by the Underwriters
in connection therewith, in each case as set forth in the table on the cover of the Prospectus,
bear to the aggregate offering price of the Securities. The relative fault of the Company on the
one hand and the Underwriters on the other 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 by the
Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) Limitation on Liability. The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Person in connection with any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total underwriting discounts and commissions received by such
Underwriter with respect to the offering of the Securities exceeds the amount of any damages that
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
to contribute pursuant
21
to this Section 7 are several in proportion to their respective purchase obligations hereunder
and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
8. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
9. Termination. This Agreement may be terminated in the absolute discretion of the
Representatives, by advance written notice given to and received by the Company, if after the
execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall
have been suspended or materially limited on the New York Stock Exchange or the over-the-counter
market; (ii) trading of any securities issued or guaranteed by the Company shall have been
suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on
commercial banking activities shall have been declared by federal or New York State authorities; or
(iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis, either within or outside the United States, that, in the
judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable
to proceed with the offering, sale or delivery of the Securities on the terms and in the manner
contemplated by this Agreement, the Time of Sale Information and the Prospectus.
10. Defaulting Underwriter. (a) If, on the Closing Date, any Underwriter
defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder, the
non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by
other persons satisfactory to the Company on the terms contained in this Agreement. If, within 36
hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for
the purchase of such Securities, then the Company shall be entitled to a further period of 36 hours
within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase
such Securities on such terms. If other persons become obligated or agree to purchase the
Securities of a defaulting Underwriter, either the non-defaulting Underwriters or the Company may
postpone the Closing Date for up to five full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement and the Prospectus or in any other document or arrangement, and the Company
agrees to promptly prepare any amendment or supplement to the Registration Statement and the
Prospectus that effects any such changes. As used in this Agreement, the term “Underwriter”
includes, for all purposes of this Agreement unless the context otherwise requires, any person not
listed in Schedule 1 hereto that, pursuant to this Section 10, purchases Securities that a
defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting
22
Underwriters and the Company as provided in paragraph (a) above, the aggregate principal
amount of such Securities that remains unpurchased does not exceed one-eleventh of the aggregate
principal amount of all the Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter
agreed to purchase hereunder plus such Underwriter’s pro rata share (based on the
principal amount of Securities that such Underwriter agreed to purchase hereunder) of the
Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been
made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the
Company shall not exercise the right described in paragraph (b) above, then this Agreement shall
terminate without liability on the part of the non-defaulting Underwriters. Any termination of
this Agreement pursuant to this Section 10 shall be without liability on the part of the Company,
except that the Company will continue to be liable for the payment of expenses as set forth in
Section 11 hereof and except that the provisions of Section 7 hereof shall not terminate and shall
remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
11. Payment of Expenses. (a) Whether or not the transactions contemplated by
this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be
paid all costs and expenses incident to the performance of its obligations hereunder, including
without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and
delivery of the Securities and any taxes payable in that connection; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration Statement, the
Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and the
Prospectus (including all exhibits, amendments and supplements thereto) and the distribution
thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv)
the fees and expenses of the Company’s counsel and independent accountants; (v) the fees and
expenses incurred in connection with the registration or qualification and determination of
eligibility for investment of the Securities under the laws of such jurisdictions as the
Representatives may designate and the preparation, printing and distribution of a Blue Sky
Memorandum (including the related fees and expenses of counsel for the Underwriters); (vi) any fees
charged by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee
and any paying agent (including related fees and expenses of any counsel to such parties); and
(viii) all expenses incurred by the Company in connection with any “road show” presentation to
potential investors.
(b) If (i) this Agreement is terminated pursuant to Section 9, (ii) the Company for any reason
fails to tender the Securities for delivery to the Underwriters or
23
(iii) the Underwriters decline to purchase the Securities for any reason permitted under this
Agreement, the Company agrees to reimburse the Underwriters for all out-of-pocket costs and
expenses (including the fees and expenses of their counsel) reasonably incurred by the Underwriters
in connection with this Agreement and the offering contemplated hereby.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to herein, and the affiliates of each
Underwriter referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be
construed to give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein. No purchaser of Securities from any
Underwriter shall be deemed to be a successor merely by reason of such purchase.
13. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained in this Agreement or made
by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall
remain in full force and effect, regardless of any termination of this Agreement or any
investigation made by or on behalf of the Company or the Underwriters.
14. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in
Rule 405 under the Securities Act.
15. Miscellaneous. (a) Authority of the Representatives. Any action by the
Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters, and any
such action taken by the Representatives shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representative c/o Citigroup
Global Markets Inc. General Counsel (fax no.: (000) 000-0000) and confirmed to the General Counsel,
Citigroup Global Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
General Counsel. Notices to the Company shall be given to it at Starwood Hotels & Resorts
Worldwide, Inc., 0000 Xxxxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, XX 00000, (fax: 000-000-0000), Attention:
Xxxxxxx X. Xxxxxx.
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
24
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
25
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
Very truly yours, STARWOOD HOTELS & RESORTS WORLDWIDE, INC. |
||||
By /s/ Xxxxxxx X. Xxxxxx | ||||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Vice President and Treasurer |
S-1
Accepted: November 5, 2009 CITIGROUP GLOBAL MARKETS INC. |
||||
By | /s/ Xxxxx Xxxxxx | |||
Authorized Officer | ||||
S-1
Schedule 1
Principal Amount of | ||||
Underwriter | the Securities | |||
Citigroup Global Markets Inc. |
$ | 75,000,000 | ||
Banc of America Securities LLC |
37,500,000 | |||
Calyon Securities (USA) Inc. |
25,000,000 | |||
RBS Securities Inc. |
25,000,000 | |||
Scotia Capital (USA) Inc. |
25,000,000 | |||
Barclays Capital Inc. |
10,416,667 | |||
Deutsche Bank Securities Inc. |
10,416,667 | |||
X.X. Xxxxxx Securities Inc. |
10,416,666 | |||
Xxxxxxx, Sachs & Co. |
7,812,500 | |||
HSBC Securities (USA) Inc. |
7,812,500 | |||
Mizuho Securities USA Inc. |
7,812,500 | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
7,812,500 | |||
Total |
$ | 250,000,000 |
S-1
Annex A
[Form of Opinion of Counsel for the Company]
(a) The execution, delivery and performance by the Company of the Underwriting Agreement, the
Base Indenture, the 2013 Supplement, the 2018 Supplement, the 2014 Supplement, the 2020 Supplement
and the Notes, and the performance by the Company of its obligations thereunder will not conflict
with, constitute a default under or violate (i) any of the terms, conditions or provisions of any
document, agreement or other instrument filed as an exhibit to the Registration Statement, the
Company’s Annual Report on Form 10-K for the year ended December 31, 2008 or the Company’s
Quarterly Report on Form 10-Q for the quarters ended March 31, 2009, June 30, 2009 and September
30, 2009 or result in the creation or imposition of any lien, charge or encumbrance upon any
property of the Company or any of its subsidiaries pursuant to any such agreement or instrument,
(ii) the laws of the State of New York or any federal law or regulation (other than federal and
state securities or blue sky laws, as to which such counsel expresses no opinion in this
paragraph), or (iii) any judgment, writ, injunction, decree, order or ruling of any court or
governmental authority binding on the Company or any of its subsidiaries of which such counsel is
aware.
(b) The Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended.
The Indenture has been duly authorized, executed and delivered by the Company, and assuming the due
authorization, execution and delivery thereof by the Trustee, the Indenture constitutes the valid
and binding obligation of the Company, enforceable against the Company in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity).
(c) The Notes have been duly authorized, executed and delivered by the Company and, assuming
the due authentication thereof by the Trustee in accordance with the provisions of the Indenture
constitute the valid and binding obligations of the Company, enforceable against it in accordance
with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and
subject, as to enforceability, to general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity), and will be entitled to the benefits of the Indenture.
(d) No consent, approval, waiver, license or authorization or other action by or filing with
any federal or New York governmental authority is required in connection with the execution and
delivery by the Company of the Underwriting Agreement, the Indenture and the Notes or the
consummation by
A-1
the Company of the transactions contemplated thereby or the performance by the Company of its
obligations thereunder, except for those in connection with federal and state securities or blue
sky laws or insurance statutes or regulations, as to which such counsel expresses no opinion in
this paragraph, and those already obtained or made.
(e) The statements set forth in the Time of Sale Prospectus and the Prospectus under the
caption “Material U.S. Federal Income Tax Consequences,” insofar as they constitute summaries of
matters of U.S. federal tax law and regulations or legal conclusions with respect thereto,
constitute accurate summaries of the matters described therein in all material respects.
(f) The statements set forth in (A) the Time of Sale Prospectus and the Prospectus under the
captions “Description of the Notes” and “Description of Debt Securities” and (B) the Registration
Statement in response to the requirements of Item 15 of Form S-3, insofar as such statements
constitute summaries of the legal matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal matters, documents and proceedings
and fairly summarize the matters referred to therein in all material respects.
(g) To such counsel’s knowledge, there are no legal, governmental or regulatory proceedings
pending or overtly threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is subject that are required
to be described in the Registration Statement, Time of Sale Prospectus or the Prospectus and are
not so described or any contracts or other documents that are required to be described in the
Registration Statement, Time of Sale Prospectus or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement that are not described, filed or incorporated
as required.
(h) The Registration Statement is an “automatic shelf registration statement” as defined under
Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years
prior to the date of the Underwriting Agreement; each of the Preliminary Prospectus and the
Prospectus was filed with the Commission pursuant to Rule 424(b) under the Securities Act; and no
order suspending the effectiveness of the Registration Statement has been issued, no notice of
objection of the Commission to the use of such registration statement or any post-effective
amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the
Company and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against
the Company or in connection with the offering is pending or, to the best of such counsel’s
knowledge, threatened by the Commission.
A-2
(i) The Registration Statement and the Prospectus, as of the date of the Prospectus Supplement
(except, in each case, for the financial statements and related notes thereto, the financial
statement schedules and the other financial and accounting data included or incorporated by
reference in the Registration Statement or the Prospectus, as to which such counsel expresses no
opinion), comply as to form in all material respects with the requirements of the Securities Act,
and the rules and regulations thereunder.
(j) The Company is not, and immediately after giving effect to the sale of the Securities and the
application of the proceeds thereof as described in the Time of Sale Prospectus and the Prospectus
will not be, an “investment company” or an entity “controlled” by an “investment company” as such
terms are defined in the Investment Company Act of 1940, as amended.
A-3
Annex B
[Form of Opinion of Special Maryland Counsel for the Company]
(a) The Company has been duly incorporated or formed and is in good standing with the State
Department of Assessments and Taxation of Maryland.
(b) The Indenture has been duly authorized, executed and delivered by the Company.
(c) This Agreement has been duly authorized, executed and delivered by the Company. The
Company has all requisite corporate power and authority to consummate the transactions contemplated
by this Agreement.
(d) The Securities have been duly authorized, executed and delivered by the Company.
(e) The execution, delivery and performance by the Company of each of the Transaction
Documents, the issuance and sale of the Securities and compliance by the Company with the terms
thereof and the consummation of the transactions contemplated by the Transaction Documents will not
conflict with the charter or bylaws of the Company or result in a material violation of any
applicable provision of any Maryland statute or any order, rule or regulation known to such counsel
of any Maryland court or governmental agency or body; and, except for such Consents as may be
required under applicable Maryland securities laws, no material Consent of any such court or
governmental agency or body is required for the execution, delivery and performance of this
Agreement or the Indenture by the Company.
In rendering such opinion, such counsel may state that its opinion is limited to matters
governed by the laws of the State of Maryland.
B-1
Annex C
[Form of Opinion of In-house Counsel for the Company]
(a) To the knowledge of such counsel and other than as set forth in the Registration
Statement, the Time of Sale Information and the Prospectus, there are no legal or governmental
proceedings pending to which the Company is a party or of which any property or assets of the
Company is the subject which would reasonably be expected to have a Material Adverse Effect; and,
to the knowledge of such counsel, no such proceedings are threatened by governmental authorities or
others.
(b) To the knowledge of such counsel, there are no contracts or other documents which would be
required to be filed as exhibits to the Registration Statement or described in the Registration
Statement and the Prospectus which have not been filed as exhibits to the Registration Statement or
described in the Registration Statement, the Time of Sale Information and the Prospectus,
provided, however, that such counsel need not express any opinion regarding such
contracts or other documents to the extent that they would be required to be described or filed as
an exhibit in the financial statements but not otherwise in the Registration Statement.
(c) The execution, delivery and performance by the Company of each of the Transaction
Documents, the issuance and sale of the Securities and compliance by the Company with the terms
thereof and the consummation of the transactions contemplated by the Transaction Documents will not
violate, conflict with, result in a material breach of any of the material terms, covenants or
provisions (except for any of the financial terms, covenants or provisions, as to which such
counsel need express no opinion and as to which such counsel may further state that it has not
performed any calculations or financial analysis of such terms, covenants or provisions) of, or (A)
constitute a material default under any material agreement filed as an exhibit to the Company’s
Annual Report on Form 10-K for the year ended December 31, 2008 or the Company’s Quarterly Report
on Form 10-Q for the quarters ended March 31, 2009, June 30, 2009 and September 30, 2009 or (B)
result in the violation of any law or statute or any judgment, order, rule or regulation of any
court or arbitrator or governmental or regulatory authority applicable to the Company or any of its
properties or assets.
C-1
Annex D
Time of Sale Information
1. Pricing term sheet filed with the Commission on November 5, 2009, pursuant to Rule 433
under the Securities Act.
D-1
Annex E
Filed Pursuant to Rule 433
Filed Pursuant to Rule 433
Registration No. 333-145894
November 5, 2009
November 5, 2009
Starwood Hotels & Resorts Worldwide, Inc.
Pricing Term Sheet
7.150% Senior Notes Due 2019
Issuer: |
Starwood Hotels & Resorts Worldwide, Inc. | |
Size: |
$250 million aggregate principal amount of 7.150% Senior Notes due 2019 | |
Maturity: |
December 1, 2019 | |
Coupon: |
7.150% | |
Price to Public: |
97.559% | |
Yield to Maturity: |
7.500% | |
Spread to Benchmark Treasury: |
T+ 396.3 basis points | |
Benchmark Treasury: |
UST 3.625% due August 15, 2019 | |
Benchmark Treasury Price / Yield: |
100 — 23 / 3.537% | |
Interest Payment Dates: |
June 1, and December 1, commencing June 1, 2010 | |
Make-whole call: |
At any time at a discount rate of Treasury plus 50 basis points | |
Settlement: |
T+ 10; November 20, 2009 | |
CUSIP / ISIN: |
00000XXX0 / U85590AANF6 | |
Ratings:* |
Ba1 (stable) / BB (stable) / BB+ (negative) | |
Joint Book-Running Managers: |
Citigroup Global Markets Inc. | |
Banc of America Securities LLC |
E-1
Calyon Securities (USA) Inc. | ||
RBS Securities Inc. | ||
Scotia Capital (USA) Inc. | ||
Senior Co-Managers: |
Barclays Capital Inc. | |
Deutsche Bank Securities Inc. | ||
X.X. Xxxxxx Securities Inc. | ||
Junior Co-Managers: |
Xxxxxxx, Xxxxx & Co. | |
HSBC Securities (USA) Inc. | ||
Mizuho Securities USA Inc. | ||
Xxxxxx Xxxxxxx & Co. Incorporated |
* | Note: A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time. |
The issuer has filed a registration statement (including a prospectus) with the SEC
for the offering to which this communication relates. Before you invest, you should
read the prospectus in that registration statement and other documents the issuer has
filed with the SEC for more complete information about the issuer and this offering.
You may get these documents for free by visiting XXXXX on the SEC Web site at
xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer participating
in the offering will arrange to send you the prospectus if you request it by calling
Citigroup Global Markets Inc. at 0-000-000-0000.
Any disclaimers or other notices that may appear below are not applicable to this
communication and should be disregarded. Such disclaimers were automatically
generated as a result of this communication being sent via email or another
communication system.
E-2