CNH INDUSTRIAL CAPITAL LLC
Exhibit 1.1
$500,000,000
1.875% Notes due 2026
September 29, 2020
Barclays Capital Inc.
Citigroup Global Markets Inc.
Xxxxxx Xxxxxxx & Co. LLC
RBC Capital Markets, LLC
As Representatives of the several
Underwriters named in Schedule I attached hereto
c/o Barclays Capital Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
c/o Morgan Xxxxxxx & Co. LLC
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o RBC Capital Markets, LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
CNH Industrial Capital LLC, a Delaware limited liability company (the “Company”) and a wholly owned subsidiary of CNH Industrial N.V. (the “Parent”), proposes, upon the terms and conditions set forth in this agreement (this “Agreement”), to issue and sell to the several underwriters named in Schedule I hereto (the “Underwriters”), for whom Barclays Capital Inc., Citigroup Global Markets Inc., Xxxxxx Xxxxxxx & Co. LLC and RBC Capital Markets, LLC are acting as representatives (in such capacity, the “Representatives”), $500,000,000 in aggregate principal amount of the Company’s 1.875% Notes due 2026 (the “Notes”). The Notes (i) will have terms and provisions that are summarized in the Pricing Disclosure Package and the Prospectus (each as defined below), and (ii) are to be issued pursuant to an Indenture, dated July 2, 2020 (the “Indenture”), entered into among the Company, the Guarantors (as defined below) and Citibank, N.A., as trustee (the “Trustee”), and an officers’ certificate or supplemental indenture pursuant thereto establishing the terms of the Notes. The Company’s obligations under the Notes, including the due and punctual payment of interest on the Notes, will be irrevocably and unconditionally guaranteed (the “Guarantees”) by the guarantors named in Schedule II hereto (together the “Guarantors”). As used herein, the term “Notes” shall include the Guarantees, unless the context otherwise requires. This Agreement is to confirm the agreement concerning the purchase of the Notes from the Company by the Underwriters.
(i) “Applicable Time” means 3:55 p.m. (New York City time) on September 29, 2020;
(ii) “Effective Date” means any date as of which a part of the registration statement relating to the Notes became, or is deemed to have become, effective in accordance with the requirements of the Securities Act and the rules and regulations thereunder;
(iii) “Issuer Free Writing Prospectus” means each “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act);
(iv) “Preliminary Prospectus” means any preliminary prospectus relating to the Notes included in any Registration Statement or filed with the Commission pursuant to Rule 424(b) under the Securities Act, including any preliminary prospectus supplement thereto relating to the Notes;
(v) “Pricing Disclosure Package” means, as of the Applicable Time, the most recent Preliminary Prospectus, together with each Issuer Free Writing Prospectus filed or used by the Company at or before the Applicable Time, other than an electronic road show that is an Issuer Free Writing Prospectus but is not required to be filed under Rule 433 under the Securities Act;
(vi) “Prospectus” means the final prospectus relating to the Notes, including any prospectus supplement thereto relating to the Notes, as filed with the Commission pursuant to Rule 424(b) under the Securities Act;
2
(vii) “Registration Statement” means, collectively, the various parts of the registration statement (File Nos. 333-230334, 000-000000-00, 000-000000-00, 333-230334-03), each as amended as of the Effective Date for such part, including any prospectus included therein, the Preliminary Prospectus or the Prospectus, all exhibits to such registration statement and including the information deemed by virtue of Rule 430B under the Securities Act to be part of such registration statement as of the applicable Effective Date; and
(viii) “Marketing Materials” means any Issuer Free Writing Prospectus other than any Issuer Free Writing Prospectus specified in Schedule IV hereto, and including but not limited to any electronic roadshow slides and any accompanying audio recording used in connection with the marketing of the Notes.
Any reference to any prospectus, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents incorporated by reference therein pursuant to Form F-3 under the Securities Act as of the date of such prospectus, Preliminary Prospectus or the Prospectus, as the case may be. Any reference to the “most recent Preliminary Prospectus” shall be deemed to refer to the latest Preliminary Prospectus included in the Registration Statement or filed pursuant to Rule 424(b) under the Securities Act prior to or on the date hereof. Any reference to any amendment or supplement to any prospectus, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any document filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the date of such prospectus, Preliminary Prospectus or the Prospectus, as the case may be, and incorporated by reference in such prospectus, Preliminary Prospectus or the Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to include any document filed with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act after the applicable Effective Date that is incorporated by reference in the Registration Statement. The Commission has not issued any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus or suspending the effectiveness of the Registration Statement, and, to the Company’s knowledge, no proceeding or examination for such purpose or pursuant to Section 8A of the Securities Act against the Company or related to the offering of the Notes has been instituted or threatened by the Commission. The Commission has not notified the Parent or the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto.
(b) Status as “Well-Known Seasoned Issuer.” At the time of initial filing of the Registration Statement, each of the Parent and the Company was, and at the date hereof, each of the Parent and the Company is, a “well-known seasoned issuer” (as defined in Rule 405 of the Securities Act) eligible to use Form F-3. The Company was not an “ineligible issuer” (as defined in Rule 405 under the Securities Act) at the earliest time after the time of initial filing of the Registration Statement that the Company or another offering participant makes a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Notes. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and was filed not earlier than the date that is three years prior to the Closing Date (as defined below).
3
4
5
6
7
8
9
10
(mm) Ratings. No “nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62) of the Exchange Act (i) has imposed (or has informed the Company or the Guarantors that it is considering imposing) any condition (financial or otherwise) on the Company’s retaining any rating assigned to the Company or any securities of the Company, or (ii) has indicated to the Company that it is considering any of the actions described in Section 7(i) hereof.
11
Any certificate signed by any officer of the Company or a Guarantor and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Notes shall be deemed a representation and warranty by the Company or such Guarantor, jointly and severally, as to matters covered thereby, to each Underwriter.
2. Purchase of the Notes by the Underwriters.
The Company and the Guarantors, jointly and severally hereby agree, on the basis of the representations, warranties, covenants and agreements of the Underwriters contained herein and subject to all the terms and conditions set forth herein, to issue and sell to the Underwriters and, upon the basis of the representations, warranties and agreements of the Company and the Guarantors herein contained and subject to all the terms and conditions set forth herein, the Underwriters agree, severally and not jointly, to purchase from the Company, at a purchase price of 99.161% of the principal amount thereof, plus accrued interest from the Closing Date to the date of payment, if any, the principal amount of Notes set forth opposite the name of such Underwriter in Schedule I hereto. The Company and the Guarantors shall not be obligated to deliver any of the Notes to be delivered hereunder except upon payment for all of the Notes to be purchased as provided herein.
12
4. Delivery of the Notes and Payment Therefor. Delivery to the Underwriters of and payment for the Notes shall be made at the office of Xxxxxx & Xxxxxxx LLP, at 10:00 a.m., New York City time, on October 6, 2020, or at such other time as the Representatives and the Company determine, such time being herein referred to as the “Closing Date.” The place of closing for the Notes and the Closing Date may be varied by agreement between the Underwriters and the Company.
The Notes will be delivered to the Underwriters, or the Trustee as custodian for The Depository Trust Company (“DTC”), against payment by or on behalf of the Underwriters of the purchase price therefor by wire transfer in immediately available funds to the order of the Company, by causing DTC to credit the Notes to the account of the Underwriters at DTC. The Notes will be evidenced by one or more global securities in definitive form (the “Global Notes”) and will be registered in the name of Cede & Co. as nominee of DTC.
(i) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or the Prospectus prior to the Closing Date which amendment or supplement is not approved by the Representatives promptly after reasonable notice thereof (which approval shall not be unreasonably withheld, conditioned or delayed) or except as provided herein; to advise the Representatives promptly of the time when any amendment or supplement to the Registration Statement or the Prospectus has been filed and to furnish the Representatives with copies thereof; to advise the Representatives, promptly after it receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Notes for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose or pursuant to Section 8A of the Securities Act, or any notice from the Commission objecting to the use of the form of Registration Statement or any post-effective supplement thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus or suspending any such qualification, to obtain as reasonably possible its withdrawal.
(ii) To furnish promptly to the Representatives and to counsel for the Underwriters, upon their reasonable request in writing to the Company, a copy of a manually executed version of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and exhibits filed therewith.
13
(iii) To deliver promptly to the Representatives such number of the following documents as the Representatives shall reasonably request: (A) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation of per share earnings); (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus; (C) each Issuer Free Writing Prospectus; and (D) any document incorporated by reference in any Preliminary Prospectus or the Prospectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Notes or any other securities relating thereto and if at such time any events shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer for the Notes as many copies as the Representatives may from time to time reasonably request of any such amended or supplemented Prospectus that will correct such statement or omission or effect such compliance.
(iv) If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which the Pricing Disclosure Package 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 under which they were made, not misleading or (ii) it is necessary to amend or supplement the Pricing Disclosure Package to comply with law, the Company will promptly notify the Underwriters thereof and forthwith prepare and, subject to Section 5(a)(i) above, furnish to the Underwriters such amendments or supplements to the Pricing Disclosure Package (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in any of the Pricing Disclosure Package as so amended or supplemented (including such documents to be incorporated by reference therein) will not, in the light of the circumstances under which they were made, be misleading or so that any of the Pricing Disclosure Package will comply with law.
(v) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission.
(vi) Prior to filing with the Commission any amendment or supplement to the Registration Statement, the Prospectus, any document incorporated by reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters and not to make such filing if the Representatives reasonably object.
14
(vii) Not to make any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus other than those which the Representatives have been provided the opportunity to review and to which the Representatives do not reasonably object.
(viii) To comply with all applicable requirements of Rule 433 under the Securities Act with respect to any Issuer Free Writing Prospectus. If at any time after the date hereof any events shall have occurred as a result of which any Issuer Free Writing Prospectus, as then amended or supplemented, would conflict with the information in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would include an 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 under which they were made, not misleading, or, if for any other reason it shall be necessary to amend or supplement any Issuer Free Writing Prospectus to comply with the requirements of the Securities Act and the rules and regulations thereunder, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Issuer Free Writing Prospectus that will correct such conflict, statement or omission or effect such compliance.
(ix) As soon as practicable after the date hereof (it being understood that the Company shall have until at least 410 days or, if the fourth quarter following the fiscal quarter that includes the date hereof is the last fiscal quarter of the Company’s fiscal year, 455 days after the end of the Company’s current fiscal quarter), to make generally available to the Company’s security holders and to deliver to the Representatives an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations thereunder (including, at the option of the Company, Rule 158).
(x) Promptly from time to time to take such action as the Representatives may reasonably request to qualify the Notes for offering and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company shall not be required to (A) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (B) file a general consent to service of process in any such jurisdiction, or (C) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(xi) To apply the net proceeds from the sale of the Notes being sold by the Company and the Guarantors substantially in accordance with the description as set forth in the Prospectus under the caption “Use of Proceeds.”
15
(xii) To file with the Commission such information on Form 10-Q or Form 10-K, as may be required by Rule 463 under the Securities Act.
(xiii) The Company, the Guarantors and their respective affiliates will not take, directly or indirectly, any action designed to or that has constituted or that reasonably would be expected to cause or result in the stabilization or manipulation of the price of any security of the Company in connection with the offering of the Notes.
(xiv) For a period commencing on the date hereof and ending on the 60th day after the date of the Prospectus, the Company and the Guarantors agree not to, directly or indirectly, except in connection with an Exempt Transaction (as defined below), (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition by any person at any time in the future of) any Lock-Up Securities (as hereinafter defined), or sell or grant options, rights or warrants with respect to Lock-Up Securities, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of Lock-Up Securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company or other securities, in cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of Lock-Up Securities, or (iv) publicly announce an offering of any Lock-Up Securities, in each case without the prior written consent of the Representatives, on behalf of the Underwriters. “Exempt Transaction” means (i) the issuance and sale of a debt security in reliance on Section 4(a)(2) of the Securities Act and such debt security is not sold in a capital markets transaction (including, without limitation any capital markets transaction made in reliance on Rule 144A or Regulation S, in each case, under the Securities Act) and (ii) any Securitization Transaction (as defined in the Indenture) entered into by the Company or any of its subsidiaries or any debt securities issued or guaranteed by the Company or any of its subsidiaries in connection therewith. “Lock-Up Securities” means debt securities issued or guaranteed by the Company or any of its subsidiaries substantially similar to the Notes (in any event having a maturity of more than one year from the date of issue) or securities convertible into or exchangeable or exercisable for any such debt securities of the Company.
(xv) The Company and the Guarantors will use their reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC.
(xvi) The Company and the Guarantors agree to comply with all agreements set forth in the representation letters of the Company and the Guarantors to DTC relating to the approval of the Notes by DTC for “book-entry” transfer.
(xvii) The Company and the Guarantors will do and perform all things required or necessary to be done and performed under this Agreement by it prior to the Closing Date.
16
(b) Each Underwriter severally agrees that such Underwriter shall not include any “issuer information” (as defined in Rule 433 under the Securities Act) in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by such Underwriter without the prior consent of the Company (any such issuer information with respect to whose use the Company has given its consent, “Permitted Issuer Information”); provided that (i) no such consent shall be required with respect to any such issuer information contained in any document filed by the Company with the Commission prior to the use of such free writing prospectus, including any Preliminary Prospectus or the Prospectus, and (ii) “issuer information,” (as used in this Section 5(b)), shall not be deemed to include information prepared by or on behalf of such Underwriter on the basis of or derived from issuer information. The Company and the Guarantors shall not be responsible to any Underwriter for liability arising from any inaccuracy in such free writing prospectus referred to in clause (i) or that does not contain any “issuer information” as compared with the information in the Preliminary Prospectus, the Prospectus or the Pricing Disclosure Package.
17
(a) The Prospectus shall have been timely filed with the Commission in accordance with Section 5(a)(i). The Company shall have complied with all filing requirements applicable to any Issuer Free Writing Prospectus used or referred to after the date hereof; no stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding or examination for such purpose or pursuant to Section 8A of the Securities Act shall have been initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been complied with. The Commission has not notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto.
(b) Xxxxxxxx & Xxxxxxxx LLP shall have furnished to the Representatives its written opinion and letter, as counsel to the Company, addressed to the Underwriters and dated the Closing Date, substantially in the forms attached hereto as Exhibit A.
(c) The Representatives shall have received from Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Notes, the Registration Statement, the Prospectus and the Pricing Disclosure Package and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(d) At the time of execution of this Agreement, the Representatives shall have received from Ernst & Young LLP a letter, in form and substance satisfactory to the Representatives, addressed to the Underwriters and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Preliminary Prospectus, as of a date not more than three business days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(e) With respect to the letter of Ernst & Young LLP referred to in the preceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement (the “initial letter”), the Company shall have furnished to the Representatives a letter (the “bring-down letter”) of such accountants, addressed to the Underwriters and dated the Closing Date (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than three business days prior to the date of the bring-down letter), the conclusions and findings of such firm with respect to the financial information and other matters covered by the initial letter, and (iii) confirming in all material respects the conclusions and findings set forth in the initial letter.
18
(f) The Underwriters shall have received an opinion, dated the Closing Date, of Xxxx X. Xxxxxxxx, General Counsel of the Company and the Guarantors, substantially in the form attached at Exhibit B.
(g) The Company and each Guarantor shall have furnished to the Representatives a certificate, dated the Closing Date, of the Chief Executive Officer and Chief Financial Officer of the Company and each Guarantor as to such matters as the Representatives may reasonably request, including, without limitation, a statement:
(i) That the representations, warranties and agreements of the Company and each of the Guarantors in Section 1 are true and correct on and as of the Closing Date, and that the Company and each of the Guarantors have complied with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date;
(ii) That no stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened; and the Commission has not notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) To the effect of Section 7(h) (provided that no representation with respect to the judgment of the Representatives need be made).
(h) Except as described in the Pricing Disclosure Package and the Prospectus, (i) neither the Company nor any of its subsidiaries shall have sustained, since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, or (ii) since such date there shall not have been any change in the capital stock membership interests or other equity interests, short-term debt, long-term debt, net current assets or net assets of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations, stockholders’ equity, properties, management, business or prospects of the Company and its subsidiaries taken as a whole, the effect of which, in any such case described in clause (i) or (ii), is, individually or in the aggregate, in the judgment of the Representatives, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering, sale or delivery of the Notes being delivered on the Closing Date on the terms and in the manner contemplated in the Prospectus.
(i) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company’s or any Guarantor’s debt securities or preferred stock by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act), and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s or any Guarantor’s debt securities or preferred stock.
19
(j) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange shall have been suspended or materially limited or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on such exchange by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction; (ii) a general moratorium on commercial banking activities shall have been declared by federal or state authorities; (iii) there shall have been an outbreak of, or escalation in, hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States; or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof or as a result of the effect of international conditions on the financial markets in the United States, or any other calamity or crisis either within or outside the United States, as to make it, in the case of clause (iii) or (iv) in the judgment of the Representatives, impracticable or inadvisable to proceed with the public offering, sale or delivery of the Notes being delivered on the Closing Date on the terms and in the manner contemplated in the Prospectus.
(k) The Notes shall be eligible for clearance and settlement through DTC.
(l) The officers’ certificate or supplemental indenture establishing the terms of the Notes shall have been executed and delivered by the Company (and, in the case of the supplemental indenture, the Trustee) and the Underwriters shall have received a copy of a manually executed version thereof.
(m) On or prior to the Closing Date, the Company and the Guarantors shall have furnished to the Underwriters such further certificates and documents as the Representatives may reasonably request.
All opinions, letters, evidence and certificates 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.
20
8. Indemnification and Contribution.
(a) The Company and each Guarantor, hereby agree, jointly and severally, to indemnify and hold harmless each Underwriter, its affiliates, directors, officers and employees and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of the Notes), to which that Underwriter, affiliate, director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in (A) any Preliminary Prospectus, the Registration Statement, the Prospectus or in any amendment or supplement thereto, (B) any Issuer Free Writing Prospectus or in any amendment or supplement thereto (including, without limitation, any Marketing Materials), (C) any Permitted Issuer Information used or referred to in any “free writing prospectus” (as defined in Rule 405 under the Securities Act) used or referred to by any Underwriter, or (ii) the omission or alleged omission to state in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Permitted Issuer Information or any Marketing Materials, any material fact required to be stated therein or necessary to make the statements therein not misleading, and shall reimburse each Underwriter and each such affiliate, director, officer, employee or controlling person promptly upon demand for any legal or other expenses reasonably incurred by that Underwriter, affiliate, director, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Company and the Guarantors shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any such amendment or supplement thereto or in any Permitted Issuer Information or any Marketing Materials, in reliance upon and in conformity with written information concerning such Underwriter furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein, which information consists solely of the information specified in Section 8(e). The foregoing indemnity agreement is in addition to any liability which the Company or the Guarantors may otherwise have to any Underwriter or to any affiliate, director, officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and hold harmless the Company, each of the Guarantors, their respective officers and employees, each of their respective directors, and each person, if any, who controls the Company, such Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company, such Guarantor or any such director, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Marketing Materials, or (ii) the omission or alleged omission to state in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Marketing Materials, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning such Underwriter furnished to the Company through the Representatives by or on behalf of that Underwriter specifically for inclusion therein, which information is limited to the information set forth in Section 8(e). The foregoing indemnity agreement is in addition to any liability that any Underwriter may otherwise have to the Company, such Guarantor or any such director, officer, employee or controlling person.
21
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the claim or the commencement of that action; provided, however, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have under paragraph (a) or (b) above except to the extent it has been materially prejudiced (through the forfeiture of substantive rights and defenses) by such failure and, provided, further, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to an indemnified party otherwise than under paragraph (a) or (b) above. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that the indemnified party shall have the right to employ counsel to represent jointly the indemnified party and those other indemnified parties and their respective directors, officers, employees and controlling persons and in the case of the parties indemnified under Section 8(a), affiliates, who may be subject to liability arising out of any claim in respect of which indemnity may be sought under this Section 8 if (i) the indemnified party and the indemnifying party shall have so mutually agreed; (ii) the indemnifying party has failed within a reasonable time to retain counsel reasonably satisfactory to the indemnified party; (iii) the indemnified party and its directors, officers, employees and controlling persons and in the case of the parties indemnified under Section 8(a), affiliates, shall have reasonably concluded that there may be legal defenses available to them that are different from or in addition to those available to the indemnifying party; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the indemnified parties or their respective directors, officers, employees or controlling persons and in the case of the parties indemnified under Section 8(a), affiliates, on the one hand, and the indemnifying party, on the other hand, and representation of both sets of parties by the same counsel would be inappropriate due to actual or potential differing interests between them, and in any such event the fees and expenses of such separate counsel shall be paid by the indemnifying party. No indemnifying party shall (x) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include a statement as to, or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party, or (y) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment.
22
(d) If the indemnification provided for in this Section 8 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Company and the Guarantors, on the one hand, and the Underwriters, on the other, from the offering of the Notes, or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantors, on the one hand, and the Underwriters, on the other, with respect to the statements or omissions that resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantors, on the one hand, and the Underwriters, on the other, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Notes purchased under this Agreement (before deducting expenses) received by the Company and the Guarantors, as set forth in the table on the cover page of the Prospectus, on the one hand, and the total underwriting discounts and commissions received by the Underwriters with respect to the Notes purchased under this Agreement, as set forth in the table on the cover page of the Prospectus, on the other hand. The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company, the Guarantors or the Underwriters, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. For purposes of the preceding two sentences, the net proceeds deemed to be received by the Company shall be deemed to be also for the benefit of the Guarantors, and information supplied by the Company shall also be deemed to have been supplied by the Guarantors. The Company, the Guarantors and the Underwriters agree that it would not be just and equitable if contributions pursuant to this Section 8(d) were to be 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 into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 8(d) shall be deemed to include, for purposes of this Section 8(d), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(d), in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total price at which the Notes purchased by it were resold 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 as provided in this Section 8(d) are several in proportion to their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company and the Guarantors acknowledge and agree that (i) the Underwriters’ names set forth on the front and back cover pages of, (ii) the statements regarding delivery of Notes by the Underwriters set forth on the front cover page of, and (iii) (A) the Underwriters’ names in the first table, (B) the first paragraph under “Commissions and Expenses,” (C) the section “Stabilization and Short Positions” and (D) the second sentence under “New Issue of Notes” appearing in each case of (A) through (D) under the caption “Underwriting” in, the Pricing Disclosure Package and the Prospectus are correct and constitute the only information concerning such Underwriters furnished in writing to the Company or any Guarantor by or on behalf of the Underwriters specifically for inclusion in any Preliminary Prospectus, the Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto or in any Marketing Materials.
23
(a) If, on the Closing Date, any Underwriter defaults in its obligations to purchase the Notes that it has agreed to purchase under this Agreement, the remaining non-defaulting Underwriters may in their discretion arrange for the purchase of such Notes by the non-defaulting Underwriters or 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 Notes, 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 Notes on such terms. In the event that within the respective prescribed periods, the non-defaulting Underwriters notify the Company that they have so arranged for the purchase of such Notes, or the Company notifies the non-defaulting Underwriters that it has so arranged for the purchase of such Notes, either the non-defaulting Underwriters or the Company may postpone the Closing Date for up to seven 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, the Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any amendment or supplement to the Registration Statement, the Prospectus or in any such other document or arrangement that effects any such changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this Agreement unless the context requires otherwise, any party not listed in Schedule I hereto that, pursuant to this Section 9, purchases Notes that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Notes 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 Notes that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Notes, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Notes that such Underwriter agreed to purchase hereunder plus such Underwriter's pro rata share (based on the principal amount of Notes that such Underwriter agreed to purchase hereunder) of the Notes of such defaulting Underwriter or Underwriters for which such arrangements have not been made; provided that the non-defaulting Underwriters shall not be obligated to purchase more than 110% of the aggregate principal of Notes that it agreed to purchase on the Closing Date pursuant to the terms of Section 4.
(c) If, after giving effect to any arrangements for the purchase of the Notes 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 Notes that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Notes, 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 9 shall be without liability on the part of the Company or the Guarantors, except that the Company and each of the Guarantors will continue to be liable for the payment of expenses as set forth in Sections 6 and 11 and except that the provisions of Section 8 shall not terminate and shall remain in effect.
24
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Company, the Guarantors or any non-defaulting Underwriter for damages caused by its default.
25
if to the Underwriters, shall be delivered or sent by mail or facsimile transmission to: Barclays Capital Inc., 000 0xx Xxxxxx Xxx Xxxx, XX 00000, Attn: General Counsel, Facsimile: x0 (000) 000-0000; Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, XX 00000, Attention: General Counsel, Facsimile: x0 (000) 000-0000; Xxxxxx Xxxxxxx & Co. LLC, 0000 Xxxxxxxx Xxxxxx Xxx Xxxx, XX 00000, Attention: General Counsel; RBC Capital Markets, LLC, 000 Xxxxx Xxxxxx Xxx Xxxx, XX 00000, Attention: General Counsel, Facsimile: x0 (000) 000-0000; and
(a) if to the Company or any Guarantor, shall be delivered or sent by mail or facsimile transmission to the address of the Company set forth in the Registration Statement, Attention: General Counsel, Facsimile: 000-000-0000, with a copy to Xxxxxxxx & Xxxxxxxx LLP, 0000 Xxxxxxxxxxx Xxxx, Xxxx Xxxx, XX 00000, Attention: Xxxx X. Xxxxx, Facsimile: 650-461-5700.
Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof. The Company and the Guarantors shall be entitled to act and rely upon any request, consent, notice or agreement given or made on behalf of the Underwriters by Citigroup Global Markets Inc. on behalf of the Representatives.
26
17. Definition of the Terms “Business Day,” “Affiliate” and “Subsidiary.” For purposes of this Agreement, (a) “business day” means each Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close, and (b) “affiliate” and “subsidiary” have the meanings set forth in Rule 405 under the Securities Act.
18. Recognition of the U.S. Special Resolution Regimes.
(a) In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section 18: “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k); “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable; and “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
27
(a) the effect of the exercise of Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability (as defined below) of an Underwriter to the Company under this Agreement, which, without limitation, may include and result in any of the following, or some combination thereof: (i) the reduction of all or a portion of the BRRD Liability or outstanding amounts due thereon; (ii) the conversion of all or a portion of the BRRD Liability into shares, other securities or other obligations of such Underwriter or another person (and the issue to or conferral on the Company of such shares, securities or obligations); (iii) the cancellation of the BRRD Liability; and (iv) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period; and
(b) the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-in Powers by the Relevant Resolution Authority.
For purposes of this Section 19: “Bail-in Legislation” means in relation to the United Kingdom and a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time; “Bail-in Powers” means any Write-down and Conversion Powers as defined in relation to the relevant Bail-in Legislation; “BRRD” means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms; “BRRD Liability” means a liability in respect of which the relevant Write-down and Conversion Powers in the applicable Bail-in Legislation may be exercised; “EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at xxxx://xxx.xxx.xx.xxx; and “Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the respective Underwriter.
20. Governing Law & Venue. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to conflict of laws principles (other than Section 5-1401 of the General Obligations Law). The Company, each of the Guarantors and the Underwriters agree that any suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby may be instituted in any State or U.S. federal court in The City of New York and County of New York, and waives any objection that such party may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the exclusive jurisdiction of such courts in any suit, action or proceeding.
28
[Signature Page Follows]
29
If the foregoing correctly sets forth the agreement among the Company, the Guarantors and the Underwriters, please indicate your acceptance in the space provided for that purpose below.
Very truly yours, | ||||
CNH INDUSTRIAL CAPITAL LLC | ||||
By: | /s/ Xxxxxxx XxxXxxx | |||
Name: | Xxxxxxx XxxXxxx | |||
Title: | Chief Financial Officer | |||
CNH INDUSTRIAL CAPITAL AMERICA LLC | ||||
By: | /s/ Xxxxxxx XxxXxxx | |||
Name: | Xxxxxxx XxxXxxx | |||
Title: | Assistant Treasurer | |||
NEW HOLLAND CREDIT COMPANY, LLC | ||||
By: | /s/ Xxxxxxx XxxXxxx | |||
Name: | Xxxxxxx XxxXxxx | |||
Title: | Assistant Treasurer |
[Signature Page to Underwriting Agreement]
Accepted:
Barclays Capital Inc.
Citigroup Global Markets Inc.
Xxxxxx Xxxxxxx & Co. LLC
RBC Capital Markets, LLC
For themselves and as Representatives
of the several Underwriters named
in Schedule I hereto
By: Barclays Capital Inc.
By: | /s/ Xxx Xxxxx | ||
Authorized Representative | |||
By: Citigroup Global Markets Inc.
By: | /s/ Xxxx Xxxxxxx | ||
Authorized Representative | |||
By: Xxxxxx Xxxxxxx & Co. LLC | |||
By: | /s/ Yurij Slyz | ||
Authorized Representative | |||
By: RBC Capital Markets, LLC | |||
By: | /s/ Xxxxx X. Xxxxxxxx | ||
Authorized Representative |
[Signature Page to Underwriting Agreement]
SCHEDULE I
Principal Amount | ||||
of Notes to be | ||||
Underwriters | Purchased | |||
Barclays Capital Inc. | $ | 62,500,000 | ||
Citigroup Global Markets Inc. | $ | 62,500,000 | ||
Xxxxxx Xxxxxxx & Co. LLC | $ | 62,500,000 | ||
RBC Capital Markets, LLC | $ | 62,500,000 | ||
BBVA Securities Inc. | $ | 62,500,000 | ||
Deutsche Bank Securities Inc. | $ | 62,500,000 | ||
Xxxxxxx Sachs & Co. LLC | $ | 62,500,000 | ||
MUFG Securities Americas Inc. | $ | 62,500,000 | ||
Total | $ | 500,000,000 |
SCHEDULE II
LIST OF GUARANTORS
CNH INDUSTRIAL CAPITAL AMERICA LLC
NEW HOLLAND CREDIT COMPANY, LLC
SCHEDULE III
ISSUER FREE WRITING PROSPECTUSES – ROAD SHOW MATERIALS
1. | The electronic roadshow in connection with the offering of the Notes, dated as of the date hereof. |
SCHEDULE IV
ISSUER FREE WRITING PROSPECTUS
1. | Issuer Free Writing Prospectus, dated September 29, 2020, filed pursuant to Rule 433 under the Securities Act. |
[See Attached]
Filed Pursuant to Rule 433
Dated September 29, 2020 |
Registration Statement Nos. 000-000000-00, 000-000000-00, 000-000000-00 |
Relating to |
Preliminary Prospectus Supplement dated Dated September 29, 2020 and |
Prospectus dated March 15, 2019 |
$500,000,000 1.875% NOTES DUE 2026
Issuer: | CNH Industrial Capital LLC |
Guarantors: | CNH Industrial Capital America LLC and New Holland Credit Company, LLC |
Expected Ratings (Xxxxx’x / S&P / Fitch):* | Baa3 / BBB / BBB- |
Form: | SEC Registered |
Principal Amount: | $500,000,000 |
Trade Date: | September 29, 2020 |
Settlement Date: | October 6, 2020 (T+5) |
Maturity Date: | January 15, 2026 |
Interest Payment Dates: | January 15 and July 15, commencing January 15, 2021 |
Coupon: | 1.875% per annum |
Price to Public: | 99.761% of the principal amount, plus accrued interest from October 6, 2020 if settlement occurs after that date |
Net Proceeds to Issuer Before Expenses: | $495,805,000 |
Benchmark Treasury: | UST 0.250% due September 30, 2025 |
Spread to Benchmark Treasury: | +167 basis points |
Benchmark Treasury Price and Yield: | 99-31+; 0.253% |
Yield to Maturity: | 1.923% |
Optional Redemption: | Make-whole premium based on U.S. Treasury +0.300% (30 basis points); par call one month prior to maturity |
Change of Control: | 101% |
Denominations: | $2,000 x $1,000 |
CUSIP / ISIN: | 12592B AL8 / US12592BAL80 |
Joint Book-Running Managers: |
Barclays Capital Inc. Citigroup Global Markets Inc. Xxxxxx Xxxxxxx & Co. LLC RBC Capital Markets, LLC BBVA Securities Inc. Deutsche Bank Securities Inc. Xxxxxxx Sachs & Co. LLC MUFG Securities Americas Inc. |
*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) and a preliminary prospectus supplement with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement, the preliminary prospectus supplement and other documents the issuer has filed with the SEC for more complete information about the issuer and the offering. You may get these documents for free by visiting XXXXX on the SEC’s website at xxx.xxx.xxx. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus and the preliminary prospectus supplement if you request them by contacting: Barclays Capital Inc. toll-free at x0 (000) 000-0000 or by email at xxxxxxxxxxxxxxxxxx@xxxxxxxxxx.xxx; Citigroup Global Markets Inc. toll-free at x0 (000) 000-0000 or by email at xxxxxxxxxx@xxxx.xxx; Xxxxxx Xxxxxxx & Co. LLC toll-free at x0 (000) 000-0000 or by email at xxxxxxxxxx@xxxxxxxxxxxxx.xxx; or RBC Capital Markets, LLC toll-free at x0 (000) 000-0000 or by email at xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxx.xxx.
EXHIBIT A
FORM OF OPINION OF COMPANY’S COUNSEL
1. Each of the Company and the Guarantors has been duly formed and is an existing limited liability company in good standing under the laws of the State of Delaware, with limited liability company power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Prospectus of the Company and the Guarantors relating to the Securities and the Guarantees, dated March 15, 2019 (the “Basic Prospectus”), as supplemented by the Prospectus Supplement, dated [ • ], 2020 (the “Prospectus Supplement”).
2. The Indenture has been duly authorized, executed and delivered by the Company and each Guarantor and duly qualified under the Trust Indenture Act of 1939 and, assuming due authorization, execution and delivery of the Indenture by the Trustee, constitutes a valid and legally binding obligation of the Company and each Guarantor enforceable against the Company and such Guarantor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
3. The Securities have been duly authorized, executed, authenticated, issued and delivered by the Company and constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
4. Each of the Guarantees has been duly authorized, executed and delivered by the respective Guarantor and constitutes a valid and legally binding obligation of each Guarantor enforceable against such Guarantor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
5. All regulatory consents, authorizations, approvals and filings required to be obtained or made by the Company or either Guarantor under the Covered Laws for the issuance, sale and delivery of the Securities by the Company to you, and the performance by the Company and the Guarantors of their respective obligations thereunder, have been obtained or made.
6. The issuance of the Securities in accordance with the Indenture and the sale of the Securities by the Company to you pursuant to the Underwriting Agreement do not, and the performance by the Company and the Guarantors of their respective obligations under the Indenture, the Underwriting Agreement, the Guarantees and the Securities will not, (i) violate the Company’s or the Guarantors’ respective operating agreements, (ii) result in a default under or breach of, or imposition of any lien or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to the terms of, any of the agreements listed in Annex I to this opinion; provided, however, that we are expressing no opinion in this clause (ii) as to compliance with any financial or accounting test, or any limitation or restriction expressed as a dollar amount, ratio or percentage, or (iii) violate any Covered Laws.
Exhibit A-1
7. The Underwriting Agreement has been duly authorized, executed and delivered by the Company and each Guarantor.
8. The Registration Statement (as defined in the Underwriting Agreement) has become effective under the Securities Act of 1933, as amended, and, based solely on our review of the “Stop Orders” web page (xxxxx://xxx.xxx.xxx/xxxxxxxxxx/xxxxxxxxxx.xxxxx) maintained by the Securities and Exchange Commission, no stop order suspending its effectiveness has been issued.
9. The Company and the Guarantors are not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Basic Prospectus, as supplemented by the Prospectus Supplement, would not be, on the date hereof, an “investment company” as defined in the Investment Company Act of 1940.
Form of Disclosure Letter of Xxxxxxxx & Xxxxxxxx LLP
Further, nothing that came to our attention in the course of such review has caused us to believe that, insofar as relevant to the offering of the Securities and the Guarantees,
(a) the Registration Statement, as of the date of the Prospectus Supplement, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or
(b) the Pricing Disclosure Package, as of [ · ] (New York City time) on [ · ], 2020, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or
(c) the Basic Prospectus, as supplemented by the Prospectus Supplement, as of the date of the Prospectus Supplement, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
Exhibit A-2
EXHIBIT B
FORM OF OPINION OF GENERAL COUNSEL
(i) the Company is duly qualified as a foreign limited liability company to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or to be in good standing would not result in a Material Adverse Effect;
(ii) except as otherwise disclosed in the Pricing Disclosure Package and the Basic Prospectus, as supplemented by the Prospectus Supplement, all of the issued and outstanding shares of capital stock, membership interests or other equity interests of each of the Company’s U.S. subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and, to the best of my knowledge, are owned by the Company (subject to de minimis exceptions in certain jurisdictions), directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity;
(iii) to the best of my knowledge, and except as disclosed in the Pricing Disclosure Package and the Basic Prospectus, as supplemented by the Prospectus Supplement, there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any of its U.S. subsidiaries is a party or to which the property of the Company or any of its U.S. subsidiaries is subject, before or brought by any court or governmental agency or body, domestic or foreign, which, individually or in the aggregate, might reasonably be expected to result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in the Underwriting Agreement and the Indenture (together the “Transaction Documents”) or the performance by each of the Company and the Guarantors of their applicable obligations thereunder or the transactions contemplated by the Basic Prospectus, as supplemented by the Prospectus Supplement;
(iv) the descriptions in the Pricing Disclosure Package and the Basic Prospectus, as supplemented by the Prospectus Supplement, of contracts and other legal documents to which the Company or any of its U.S. subsidiaries is a party are fair summaries of such documents in all material respects; to the best of my knowledge, there are no franchises, contracts, indentures, mortgages, loan agreements, notes, leases or other instruments that would be required to be described in the Pricing Disclosure Package and the Basic Prospectus, as supplemented by the Prospectus Supplement, that are not described or referred to in the Pricing Disclosure Package and the Basic Prospectus, as supplemented by the Prospectus Supplement, other than those described or referred to therein, and the descriptions thereof or references thereto fairly summarize such documents in all material respects;
(v) to the best of my knowledge, neither the Company nor any of its U.S. subsidiaries is (a) in violation of (1) its operating agreement or other organizational document or (2) except as would not have a Material Adverse Effect, any applicable law, statute, rule, regulation, judgment, order, writ or decree of any U.S. government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its U.S. subsidiaries or any of their respective properties, assets or operations, or (b) in breach of, or default under, any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or instrument to which the Company or any of its U.S. subsidiaries is a party or by which it or any of them may be bound (except for such breaches or defaults that would not have a Material Adverse Effect); and
Exhibit B-1
(vi) the execution and delivery of each of the Transaction Documents, the consummation of the transactions contemplated in the Transaction Documents and the performance by the Company and the Guarantors of their applicable obligations under the Transaction Documents will not (a) result in any violation of the provisions of the operating agreement or other organizational documents of the Company or any of its U.S. subsidiaries or (b) to the best of my knowledge, whether with or without the giving of notice or lapse of time or both, conflict with, or constitute a breach of, or 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 U.S. subsidiaries thereof pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other agreement or instrument to which the Company or any of its U.S. subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any of its U.S. subsidiaries is subject (except for such conflicts, breaches or defaults or liens, charges or encumbrances that would not have a Material Adverse Effect), or, except as would not have a Material Adverse Effect, any applicable law, statute, rule, regulation, judgment, order, writ or decree, known to me, of any government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its U.S. subsidiaries or any of their respective properties, assets or operations.
(vii) To the best of my knowledge, there are no contracts or other documents of a character required to be described in the Registration Statement or the Basic Prospectus, as supplemented by the Preliminary Prospectus Supplement or to be filed as exhibits to the Registration Statement or incorporated by reference therein that are not described therein or filed therewith or incorporated by reference therein as required.
Exhibit B-2