EXHiBIT 1.1
LIMITED BRANDS, INC.
TERMS AGREEMENT
November 25, 2002
Limited Brands, Inc.
Three Limited Parkway
Columbus, Ohio 43230
Ladies and Gentlemen:
We (the "Representatives") understand that Limited Brands, Inc., a
Delaware corporation (the "Company"), proposes to issue and sell to the
underwriters named in Schedule II hereto (the "Underwriters") the principal
amount of its debt securities (the "Securities"), if any, identified in
Schedule I hereto (the "Underwritten Securities").
All the provisions contained in the document constituting Annex A hereto
entitled "Limited Brands, Inc. Debt Securities -- Underwriting Agreement
Provisions" are incorporated herein in their entirety and shall be deemed to be
a part of this Terms Agreement to the same extent as if such provisions had
been set forth in full herein. Terms defined in such document are used herein
as therein defined.
Subject to the terms and conditions set forth herein or incorporated by
reference herein, the Underwriters offer to purchase, severally and not
jointly, at the respective purchase price set forth in Schedule I hereto, the
principal amount of the Underwritten Securities set forth opposite their
respective names in Schedule II hereto.
If the firm or firms identified as Underwriters include only the firm or
firms identified as the Representatives, then the terms Underwriters and
Representatives shall each be deemed to refer to such firm or firms.
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Please accept this offer on November 25, 2002 by signing a copy of this
Terms Agreement in the space set forth below and returning the signed copy to
us.
Very truly yours,
J.P. MORGAN SECURITIES INC.
By /s/Rod Aronson
------------------------------------
Name: Rod Aronson
Title: Vice President
SALOMON SMITH BARNEY INC.
By /s/J. Maurice Lopez
------------------------------------
Name: J. Maurice Lopez
Title: Director
Each acting severally and on
behalf of itself and the several
Underwriters named on Schedule II
hereto
Accepted: November 25, 2002
LIMITED BRANDS, INC.
By /s/V. Ann Hailey
-----------------------------
Name: V. Ann Hailey
Title: Executive Vice President and
Chief Financial Officer
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(Signature Page - Terms Agreement)
SCHEDULE I TO TERMS AGREEMENT
Description of Debt Securities:
Title: 6 1/8 % Notes due 2012
Principal amount (including currency or composite currency): $300,000,000
Interest Rate: 6.125%
Purchase Price: 98.923%
Offering Price: 99.573%
Interest Payment Dates: June 1 and December 1, commencing June 1, 2003
Optional Redemption: Make Whole at Treasury + 30 bps
Sinking Fund Provisions: None
Delivery Date: December 3, 2002
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SCHEDULE II TO TERMS AGREEMENT
Principal Amount
of Underwritten Securities
Underwriter to be Purchased)
----------- ----------------
$120,000,000
J.P. Morgan Securities Inc.
Salomon Smith Barney Inc. 120,000,000
Fleet Securities, Inc. 15,000,000
HSBC Securities (USA) Inc. 15,000,000
BNY Capital Markets, Inc. 12,000,000
Wachovia Securities, Inc. 12,000,000
Banc One Capital Markets, Inc. 6,000,000
------------
Total $300,000,000
============
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ANNEX A TERMS AGREEMENT
LIMITED BRANDS, INC.
Debt Securities
UNDERWRITING AGREEMENT PROVISIONS
1. Introductory.
1.1. Offerings of Securities. The Company proposes to issue and sell
certain of its debt securities, issuable under an indenture dated as of March
15, 1988 (the "Indenture") between the Company and The Bank of New York, as
trustee (the "Trustee"), identified in the Terms Agreement (as hereinafter
defined) (such debt securities being sometimes referred to herein as the
"Underwritten Securities").
1.2. Terms Agreement. The terms with respect to the purchase of the
Underwritten Securities from the Company by the several Underwriters listed in
the terms agreement, dated November 25, 2002, entered into between the
Representatives, on behalf of such Underwriters, and the Company (the "Terms
Agreement"), to which these Underwriting Agreement Provisions constitute Annex
A, are set forth in the Terms Agreement, which together with the provisions
hereof incorporated therein by reference, is sometimes herein referred to as
this "Agreement." Terms defined in the Terms Agreement are used herein as
therein defined.
2. Representations, Warranties and Agreements of the Company. The Company
represents and warrants to and agrees with each Underwriter that:
2.1. Registration Statement. A registration statement (the "Initial
Registration Statement") on Form S-3 (File No. 333-53366) with respect to the
Securities has been prepared by the Company in conformity with the requirements
of the Securities Act of 1933 (the "Act"), and the rules and regulations (the
"Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, has been filed with the Commission and has become
effective. The Company has filed or will promptly file a registration statement
increasing the size of the offering (a "Rule 462(b) Registration Statement"),
pursuant to Rule 462(b) under the Act, which became or will become effective
upon filing. No stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement has been issued and, to the Company's knowledge, no
proceeding for that purpose has been initiated or threatened by the Commission.
As used in this
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Agreement (i) "Registration Statement" means the initial Registration Statement
and the Rule 462(b) Registration Statement, including all exhibits thereto and
all documents incorporated therein by reference; (ii) "Basic Prospectus" means
the prospectus and all documents incorporated therein by reference included in
the Initial Registration Statement; and (iii) "Prospectus" means the Basic
Prospectus, together with any amendments or supplements thereto and, in each
case, all documents incorporated therein by reference specifically relating to
the Underwritten Securities, as filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations.
2.2. Compliance with Applicable Law. The Registration Statement and the
Prospectus comply, and (in the case of any amendment or supplement to any such
document, or any material incorporated by reference in any such document filed
with the Commission after the date as of which this representation is being
made) will comply at all times during the period specified in subsection 7.3
hereof, with the provisions of the Act, the Rules and Regulations, the
Securities Exchange Act of 1934 (the "Exchange Act") and the rules and
regulations of the Commission thereunder. The Indenture, including any
amendments and supplements thereto, pursuant to which the Underwritten
Securities will be issued will conform with the requirements of the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the rules
and regulations of the Commission thereunder. The Registration Statement and
the Prospectus do not, and (in the case of any amendment or supplement to any
such document, or any material incorporated by reference in any such document
filed with the Commission after the date as of which this representation is
being made) will not at any time during the period specified in subsection 7.3
hereof, contain any untrue statement of a material fact or omit to state any
material fact 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. The Company makes no representation or warranty as to (a) that part
of the Registration Statement of Eligibility and Qualification under the Trust
Indenture Act (Form T-1) of the Trustee or (b) information contained in or
omitted from the Registration Statement or the Prospectus in reliance upon and
in conformity with information furnished in writing to the Company through the
Representatives by or on behalf of any Underwriter specifically for inclusion
therein.
2.3. Compliance with Reporting Requirements. The Company is subject to and
in full compliance with the reporting requirements of Section 13 or Section
15(d) of the Exchange Act.
2.4. Stabilization or Manipulation of Price. The Company has not taken,
directly or indirectly, any action designed to cause or which has constituted
or which might reasonably be expected to cause or result, under the Exchange
Act or otherwise, in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Underwritten
Securities.
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2.5. Duly Incorporated and Validly Existing; Power and Authority. Each of
the Company and its Significant Subsidiaries (as defined in Rule 1-02 of
Regulation S-X under the Act) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction
in which it is chartered or organized with full corporate power and authority
to own or lease, as the case may be, and to operate its properties and conduct
its business as described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the laws of
each jurisdiction which requires such qualification, except, in each case, to
the extent that the failure to qualify or be in good standing would not have a
material adverse effect on the financial condition or results of operations of
the Company and its subsidiaries, taken as a whole. There are no Significant
Subsidiaries of the Company as defined in Rule 1-02 of Regulation S-X under the
Act that are not listed on Exhibit A attached hereto.
2.6. Capital Stock. All the outstanding shares of capital stock of the
Company and each Significant Subsidiary have been duly and validly authorized
and issued and are fully paid and nonassessable, and, except as otherwise set
forth in the Prospectus, all outstanding shares of capital stock of the
Significant Subsidiaries are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security interest or
any other security interests, claims, liens, encumbrances, charges,
restrictions upon voting or transfer or any other claim of any third party,
except for any such security interests, claims, liens, encumbrances, charges
and restrictions that would not have a material adverse effect on the financial
condition or results of operations of the Company and its subsidiaries, taken
as a whole.
2.7. Prospectus Summary Statements. The statements in the Prospectus under
the headings "Use of Proceeds" and "Description of the Notes" fairly summarize
the matters therein described.
2.8. Authorization, Execution and Delivery. This Terms Agreement has been
duly authorized, executed and delivered by the Company; the Indenture has been
duly authorized, executed and delivered by the Company and constitutes the
legal, valid, binding instrument enforceable against the Company in accordance
with its terms (subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity); the Underwritten Securities have been duly authorized,
and, when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters, will have been
duly executed and delivered by the Company and will constitute the legal, valid
and binding obligations of the Company entitled to the benefits of the
Indenture (subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity).
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2.9. No Conflicts. Neither the execution and delivery of the Indenture or
the Terms Agreement, the issue and sale of the Underwritten Securities, nor the
consummation of any other of the transactions herein or therein contemplated,
nor the fulfillment of the terms hereof or thereof will conflict with, result
in a breach or violation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its Significant Subsidiaries
pursuant to (i) the charter or by-laws of the Company or any of its Significant
Subsidiaries; (ii) the terms of any indenture, contract, lease, mortgage, deed
of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any of its
Significant Subsidiaries is a party or bound or to which its or their property
is subject, except, in each case, for conflicts, breaches, violations and liens
that would not have a material adverse effect on the financial condition or
results of operations of the Company and its subsidiaries, taken as a whole; or
(iii) any statute, law, rule, regulation, judgment, order or decree applicable
to the Company or any of its Significant Subsidiaries of any court, regulatory
body, administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its Significant Subsidiaries or
any of its or their properties except, in each case, for conflicts, breaches,
violations and liens that would not have a material adverse effect on the
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
2.10. Financial Statements. The consolidated historical financial
statements and schedules of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration Statement and the
Prospectus present fairly in all material respects the financial condition,
results of operations and cash flows of the Company as of the dates and for the
periods indicated, comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved (except as otherwise noted therein).
2.11. Forward-looking Statements. No forward-looking statement (within the
meaning of Section 27A of the Act and Section 21E of the Exchange Act)
contained in the Prospectus has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.
2.12. No Material Adverse Change. Since the dates as of which information
is given in the Prospectus, except as otherwise stated therein, (i) there has
been no material adverse change in the condition (financial or otherwise),
prospects, earnings, business, management or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising in the ordinary course
of business, (ii) none of the Company nor any Significant Subsidiary has
incurred any material liability or obligation, direct or contingent, other than
in the ordinary course of business, and (iii) there has not been any material
decrease in the capital stock or material increase in the long-term debt of the
Company, or any dividend or distribution of any kind declared, paid or made by
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the Company on any class of their respective capital stock other than quarterly
cash dividends consistent with past practice.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Representatives in connection with the
offering of the Underwritten Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each Underwriter.
3. Purchase of the Underwritten Securities.
3.1. Effect of Terms Agreement. The obligation of the Underwriters to
purchase, and the Company to sell, the Underwritten Securities is evidenced by
the Terms Agreement. The Terms Agreement specifies the firm or firms which will
be the Underwriters; the principal amount of the Underwritten Securities to be
purchased by each Underwriter, the purchase price to be paid by the
Underwriters for the Underwritten Securities, the public offering price of the
Underwritten Securities, the Underwriters' compensation therefor and any terms
of the Underwritten Securities not already specified in the Indenture.
3.2. Obligation to Purchase Several, Not Joint. It is understood that, in
making this Agreement, the Underwriters are contracting severally and not
jointly, and that their several agreements to purchase the Underwritten
Securities on the basis of the agreements and representations herein contained
shall be several and not joint and shall apply only to the respective principal
amounts of the Underwritten Securities to be purchased by them as provided
herein.
4. Delivery of the Underwritten Securities. The Company shall not be
obligated to deliver any Underwritten Securities except upon payment for all
Underwritten Securities to be purchased pursuant to this Agreement as
hereinafter provided.
5. Default in Performance by Underwriter.
5.1. Obligations of Non-Defaulting Underwriters. If any Underwriter
defaults in the performance of its obligations under this Agreement, the
remaining non-defaulting Underwriters shall be obligated severally to purchase
the Underwritten Securities which the defaulting Underwriter agreed but failed
to purchase in the respective proportions which the principal amount of
Underwritten Securities set forth in the applicable column in Schedule II to
the Terms Agreement to be purchased by each remaining non-defaulting
Underwriter set forth in such column bears to the aggregate principal amount of
Underwritten Securities set forth in such column to be purchased by all the
remaining non-defaulting Underwriters; provided that the remaining
non-defaulting Underwriters shall not be obligated to purchase any Underwritten
Securities that constitute Underwritten Securities if the aggregate principal
amount of such
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Underwritten Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase exceeds 10% of the total principal amount of such
Underwritten Securities. If the foregoing maximum is exceeded, the remaining
non-defaulting Underwriters, or other underwriters satisfactory to the
Representatives, shall have the right, but shall not be obligated, to purchase,
in such proportion as may be agreed upon among them, all the Underwritten
Securities.
5.2. Termination of Agreement. If the remaining non-defaulting
Underwriters or other underwriters satisfactory to the Representatives do not
elect pursuant to the last sentence of subsection 5.1 to purchase the aggregate
principal amount of Underwritten Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase that exceeds 10% of the total
principal amount of such Underwritten Securities, this Agreement with respect
to such Underwritten Securities shall terminate without liability on the part
of any non-defaulting Underwriter or the Company.
5.3. Liability of Defaulting Underwriter. Nothing contained in this
Section 5 shall relieve a defaulting Underwriter of any liability it may have
to the Company and any non-defaulting Underwriter for damages caused by its
default. If other underwriters are obligated or agree to purchase the
Underwritten Securities of a defaulting Underwriter, either the Representatives
or the Company may postpone the Delivery Date for up to five full business days
in order to effect any changes that the Underwriters shall determine may be
necessary in the Registration Statement, the Prospectus or in any other
document or arrangement.
6. Delivery and Payment.
6.1. Date and Time of Delivery. Delivery of and payment for the
Underwritten Securities shall be made at such location as may be agreed upon by
the Representatives and the Company (as set forth in Schedule I to the Terms
Agreement) at 10:00 A.M., New York City time, on the fifth business day
following the date of the Terms Agreement, or at such other time and date as
shall be agreed upon, or as provided in Section 5.3. This date and time are
sometimes referred to as the "Delivery Date".
6.2. Payment. On the Delivery Date, the Company shall deliver the
Underwritten Securities to the Representatives for the account of each
Underwriter against payment to or upon the order of the Company of the purchase
price by wire transfer payable in same-day funds, to the account specified by
the Company.
6.3. Form. Delivery of the Underwritten Securities shall be made either at
such location as either of the Representatives shall reasonably designate at
least one business day in advance of the Delivery Date or through the
facilities of The Depository Trust Company. Certificates for the Underwritten
Securities shall be registered in such names and in such denominations as
either of the Representatives may request not less than two business days in
advance of the Delivery Date. The Company agrees to have
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the Underwritten Securities available for inspection, checking and packaging by
the Representatives in New York, New York, not later than 1:00 PM on the
business day prior to the Delivery Date.
7. Further Agreements of the Company. The Company further agrees:
7.1. Registration Statement; Prospectus. To prepare the Prospectus in a
form approved by the Representatives and to file such Prospectus pursuant to
Rule 424(b) under the Act and to prepare and file the Rule 462(b) Registration
Statement in each case within the time periods required by the Act and the
Rules and Regulations. To furnish promptly to the Representatives and to
counsel for the Underwriters a signed copy of the Registration Statement as
originally filed and a copy of each amendment thereto (in each case together
with all exhibits filed therewith) filed prior to the date of the Terms
Agreement or relating to or covering the Underwritten Securities, and a copy of
the Prospectus filed with the Commission.
7.2. Other Documents. To deliver promptly to the Representatives, without
charge, such number of the following documents as the Representatives may
request: (a) conformed copies of the Registration Statement (including
exhibits), (b) the Prospectus and (c) any documents incorporated by reference
in the Prospectus, and the Company authorizes the Underwriters and all dealers
to whom any Underwritten Securities may be offered or sold by the Underwriters
to use such documents in connection with the sale of the Underwritten
Securities in accordance with the applicable provisions of the Act and the
Rules and Regulations.
7.3. Supplemental Information. During such period following the date of
the Terms Agreement as, in the opinion of counsel for the Underwriters, a
prospectus is required by law to be delivered, the Company will furnish copies
of (a) any amendment to the Registration Statement; (b) the Prospectus or any
amendment or supplement thereto, or (c) any document incorporated by reference
in any of the foregoing or any amendment or supplement to any such incorporated
document to the Representatives and to counsel for the Underwriters prior to
filing any of such items with the Commission and will not file any such item to
which the Representatives shall reasonably object; provided that, despite any
such objection but after consultation with the Representatives, including the
furnishing to the Representatives of drafts thereof, the Company may file any
report or statement which in the written opinion of its counsel it is required
to file pursuant to the Exchange Act The Company will file promptly all reports
and any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of the Prospectus and for so long as
the delivery of a prospectus is required in connection with the offering or
sale of the Underwritten Securities.
7.4. Duty to Notify of Certain Events. To advise the Representatives
promptly (a) when any post-effective amendment to the Registration Statement
relating
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to or covering the Underwritten Securities becomes effective, (b) of any
request or proposed request by the Commission for an amendment or supplement
(insofar as the amendment or supplement relates to or covers the Underwritten
Securities) to the Registration Statement, any Rule 462(b) Registration
Statement, to the Prospectus, to any document incorporated by reference in any
of the foregoing or for any additional information relating to the Registration
Statement or the Prospectus (insofar as such information relates to or covers
the Underwritten Securities), (c) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or any order
directed to the Prospectus or any document incorporated therein by reference or
the initiation of any stop order proceeding or of any challenge to the accuracy
or adequacy of any document incorporated by reference in the Prospectus, and
(d) of receipt by the Company of any notification with respect to the
suspension of the qualification of the Underwritten Securities for sale in any
jurisdiction or the initiation of any proceeding for that purpose. If at any
time during the period referred to in Section 7.3 above that the Prospectus
relating to the Underwritten Securities is required to be delivered under the
Act, any event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of material fact or omit to
state any material fact necessary to make the statements therein in the light
of the circumstances under which they were made not misleading, or if it shall
be necessary to amend or supplement the Prospectus to comply with the Act, the
Rules and Regulations, the Exchange Act or the rules and regulations of the
Commission thereunder, the Company (i) will notify the Representatives of any
such event, (ii) promptly will prepare and file with the Commission, subject to
Section 7.3, an amendment or supplement which will correct such statement or
omission or an amendment or supplement which will effect such compliance and
(iii) will supply any supplemented or amended prospectus to the several
Underwriters and counsel for the Underwriters without charge in such quantities
as they may reasonably request.
7.5. Stop Orders; Action Required. If, during the period referred to in
Section 7.3 above, the Commission shall issue a stop order suspending the
effectiveness of the Registration Statement during a time the Prospectus
relating to the Underwritten Securities is required to be delivered under the
Act, to make every reasonable effort to obtain the lifting of that order at the
earliest possible time.
7.6. Earnings Statement. As soon as practicable, or in accordance with
Rule 158 of the Rules and Regulations, to make generally available to its
security holders and to the Representatives an earnings statement (which need
not be audited) of the Company and its consolidated subsidiaries, which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder.
7.7. Further Assurances. Arrange, if necessary, for the qualification of
the Underwritten Securities for sale under the laws of such jurisdictions as
the Representatives may reasonably designate and pay all expenses (including
reasonable
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fees and disbursements of counsel) in connection with such qualification, to
maintain such qualifications in effect during the period referred to in Section
7.3 above and to arrange for the determination of the legality of the
Underwritten Securities for purchase by institutional investors; provided,
however, that the Company shall not be required to qualify to do business in
any jurisdiction where it is not so qualified at the date of the Terms
Agreement or to take any action which would subject it to general or unlimited
service of process in suits, other than those arising out of the offering or
sale of the Underwritten Securities, or to the imposition of any taxes based
on, or measured by, all or any part of the income of the Company in any
jurisdiction where it is not at such date so subject. The Company will promptly
advise the Representatives of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Underwritten
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose.
7.8. Failure to Perform. If the sale of the Underwritten Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 10 hereof is not satisfied or because
of any termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, to reimburse the Underwriters severally through either of the
Representatives upon demand for all out-of-pocket expenses (including the
reasonable fees and disbursements of counsel for the Underwriters) that shall
have been reasonably incurred by them in connection with the proposed purchase
and sale of the Underwritten Securities.
7.9. No Announcements. The Company will not, for the period of time
following the date and time that this Agreement is executed and delivered by
the parties hereto (the "Execution Time") until the Delivery Date, without the
prior written consent of the Representatives, offer, sell or contract to sell,
or otherwise dispose of (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any Affiliate of the Company or any person in
privity with the Company or any Affiliate of the Company), directly or
indirectly, or announce the offering of, any debt securities issued or
guaranteed by the Company (other than the Underwritten Securities).
8. Indemnification.
8.1. Indemnification by the Company. The Company shall indemnify and hold
harmless each Underwriter, the directors and officers of each Underwriter and
each person who controls any Underwriter within the meaning of either the Act
or the Exchange Act from and against any and all losses, claims, damages or
liabilities, joint or several, and any action in respect thereof, to which they
or any of them may become subject, under the Act, the Exchange Act or other
federal or state statutory law or
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regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities (or actions in respect thereof) arise out of, or are based
upon, any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus or arises out of, or
is based upon, the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, and
shall reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending against any such loss, claim, damage, liability or
action; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any such untrue statement or alleged untrue
statement or omission or alleged omission (a) made in the Registration
Statement or the Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein or (b) contained
in that part of the Registration Statement constituting the Statement of
Eligibility and Qualification under the Trust Indenture Act (Form T-1) of the
Trustee; provided further, that the Company will not be liable for the amount
of any settlement of any claim made without its consent, such consent not to be
unreasonably withheld. The foregoing indemnity agreement is in addition to and
not in limitation or duplication of any liability or right which the Company
may otherwise have to an Underwriter or any person who controls an Underwriter.
8.2. Indemnification by the Underwriters. Each Underwriter agrees
severally and not jointly to indemnify and hold harmless the Company, each of
its directors, each of its officers and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter as set forth in
subsection 8.1 above, but only with reference to written information furnished
to the Company through the Representatives by or on behalf of that Underwriter
specifically for inclusion in the documents referred to in the foregoing
indemnity. The foregoing indemnity agreement is in addition to and not in
limitation or duplication of any liability which any Underwriter may otherwise
have to the Company or any of its directors, officers or controlling persons.
The Company acknowledges that the statements set forth in the last paragraph of
the cover page regarding the delivery of the Underwritten Securities and, under
the heading "Underwriting" on page S-12 of the Prospectus, paragraph 7 and
paragraph 9, constitute the only information furnished in writing by or on
behalf of the Underwriters for inclusion in the Prospectus (or in any amendment
or supplement thereto).
8.3. Notice of Claim or Action. Promptly after receipt by an indemnified
party under subsection 8.1 or 8.2 above of notice of the commencement of any
action, the indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify the
indemnifying party in writing of the
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commencement of that action, but the failure so to notify the indemnifying
party (i) will not relieve it from liability under Sections 8.1 and 8.2 above
unless such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses; and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in Sections 8.1 and 8.2 above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of one such separate counsel (in
addition to local counsel) for such indemnified party if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest; (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party; (iii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the
institution of such action; or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the indemnifying
party. An indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
8.4. Contribution. In the event that the indemnity provided in Sections
8.1 or 8.2 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriters agree to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
same) (collectively "Losses") to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and by the
Underwriters on the other from the offering of the Underwritten Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among the Underwriters relating to the offering of
the
11
Underwritten Securities) be responsible for any amount in excess of the
purchase discount or commission applicable to the Underwritten Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such Losses, as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by it, and benefits received by the Underwriters
shall be deemed to be equal to the total purchase discounts and commissions in
each case set forth on the cover of the Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Company on the
one hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph, no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act and each officer and director of the Company
shall have the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph.
9. Termination of Underwriter Obligations. The obligations of the
Underwriters under this Agreement may be terminated by the Representatives, in
their absolute discretion, by notice given to and received by the Company prior
to delivery of and payment for the Underwritten Securities, if, during the
period beginning on the date of the Terms Agreement to and including the
Delivery Date, (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange; (ii)
a banking moratorium shall have been declared either by Federal or New York
State authorities; or (iii) there shall have occurred any outbreak or material
escalation of hostilities or acts of terrorism or declaration by the United
States of a national emergency or war or other calamity or crisis or any change
in financial, political or economic conditions in the United States or
elsewhere the effect of which on the
12
financial markets of the United States and Europe is such as to make it, in the
judgment of the Representatives, impracticable or inadvisable to proceed with
the offering or delivery of the Underwritten Securities as contemplated by the
Prospectus (exclusive of any amendment or supplement thereto).
10. Additional Conditions to the Respective Obligations of the
Underwriters.
10.1. Accuracy of Representations and Warranties. The respective
obligations of the Underwriters under this Agreement with respect to the
Underwritten Securities are subject to the accuracy, on the date of the Terms
Agreement and on the Delivery Date, of the representations and warranties of
the Company contained herein, to the accuracy of the statements of the Company
made in any certificates pursuant to the provisions hereof, to performance by
the Company of its obligations hereunder, and to each of the following
additional terms and conditions applicable to the Underwritten Securities:
10.1.1. At or before the Delivery Date, no stop order suspending the
effectiveness of the Registration Statement or any order directed to any
document incorporated by reference in the Prospectus shall have been
issued and remain in effect and no proceeding for that purpose shall be
pending or, to the knowledge of the Company or the Representatives,
threatened by the Commission.
10.1.2. The Company shall have requested and caused its General
Counsel, Samuel P. Fried, Esq., to furnish to the Representatives his
opinion, dated the Delivery Date and addressed to the Representatives, to
the effect that:
(a) each of the Company and its Significant Subsidiaries has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority to
own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectus, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification, except, in each case, to the extent that the failure
to qualify or be in good standing would not have a material adverse
effect on the financial condition or results of operations of the
Company and its subsidiaries, taken as a whole;
(b) other than as set forth or contemplated in the Prospectus,
such counsel does not know of any legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or
to which any property of the Company or any of its subsidiaries is
subject where there is a material risk that such proceeding will be
determined adversely to the Company or any of its subsidiaries and
which,
13
if so determined, individually or in the aggregate, is expected to
have a material adverse effect on the consolidated financial
position, shareholders' equity or results of operations of the
Company and its subsidiaries, considered as a whole, and to the best
of such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(c) this Agreement has been duly authorized, executed and
delivered by the Company;
(d) no consent, approval, authorization, filing with or order of
any court or governmental authority or agency or regulatory body is
required in connection with the transactions contemplated herein or
in the Indenture, except such as will be obtained under the Act and
the Trust Indenture Act and such as may be required under the blue
sky or securities laws of any jurisdiction in connection with the
purchase and sale of the Underwritten Securities by the Underwriters
in the manner contemplated in this Agreement and the Prospectus and
such other approvals (specified in such opinion) as have been
obtained;
(e) neither the execution and delivery of this Agreement, the
issue and sale of the Securities, nor the consummation of any other
of the transactions herein or therein contemplated, nor the
fulfillment of the terms hereof or thereof will conflict with, result
in a breach or violation of, or imposition of any lien, charge or
encumbrance upon any property or asset of the Company or its
Significant Subsidiaries pursuant to, (i) the charter or by-laws of
the Company or its Significant Subsidiaries; (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument known to such counsel to which the Company or any of its
Significant Subsidiaries is a party or bound or to which its
respective property is subject, except, in each case, for conflicts,
breaches, violations and liens that would not have a material adverse
effect on the financial condition or results of operations of the
Company and its subsidiaries, taken as a whole; or (iii) any statute,
law, rule, regulation, judgment, order or decree known to such
counsel applicable to the Company or any of its Significant
Subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction
over the Company, any of its Significant Subsidiaries or any of their
respective properties, except, in each case, for conflicts, breaches,
violations and liens that would not have a material adverse effect on
the financial condition or results of operations of the Company and
its subsidiaries, taken as a whole; and
14
(f) the Company is not and, after giving effect to the offering
and sale of the Underwritten Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act without
taking account of any exemption arising out of the number of holders
of the Company's securities.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
jurisdiction of incorporation of the Company, the Delaware General Corporations
Law, the State of Ohio or the Federal laws of the United States, to the extent
it deems proper and specified in such opinion, upon the opinion of other
counsel of good standing whom it believes to be reliable and who are
satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to
the extent it deems proper, on certificates of responsible officers of the
Company and public officials.
In addition, such counsel shall advise by letter, based on such counsel's
participation in the preparation of the Registration Statement and Prospectus
(but without independent check or verification of the contents thereof except
as specified therein), that such counsel has no reason to believe that the
Registration Statement (except the financial statements and other financial and
statistical data included or incorporated by reference therein, as to which
such counsel need express no view), at the Execution Time or on the Delivery
Date, contained or contains any untrue statement of a material fact or omitted
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, or that the Prospectus (except as aforesaid), at the
Execution Time and on the Delivery Date, contains any untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
10.1.3. The Company shall have requested and caused Davis Polk &
Wardwell, counsel for the Company, to furnish to the Representatives its
opinion, dated the Delivery Date and addressed to the Representatives, to
the effect that:
(a) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
corporate power and authority to own or lease, as the case may be,
and to operate its properties and conduct its business as described
in the Prospectus;
(b) the Indenture has been duly authorized, executed and
delivered, and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms
(subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally
15
from time to time in effect and to general principles of equity); the
Underwritten Securities have been duly and validly authorized and,
when executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Underwriters under
this Agreement, will constitute legal, valid and binding obligations
of the Company entitled to the benefits of the Indenture (subject, as
to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to
general principles of equity); and the statements set forth under the
heading "Description of the Notes" in the Prospectus, insofar as such
statements purport to summarize certain provisions of the Securities
and the Indenture, provide a fair summary of such provisions;
(c) this Agreement has been duly authorized, executed and
delivered by the Company;
(d) no consent, approval, authorization, filing with or order of
any court or governmental authority or agency or regulatory body is
required in connection with the transactions contemplated herein or
in the Indenture, except such as will be obtained under the Act and
the Trust Indenture Act and such as may be required under the blue
sky or securities laws of any jurisdiction in connection with the
purchase and sale of the Underwritten Securities by the Underwriters
in the manner contemplated in this Agreement and the Registration
Statement and the Prospectus and such other approvals (specified in
such opinion) as have been obtained;
(e) the Company is not and, after giving effect to the offering
and sale of the Underwritten Securities and the application of the
proceeds thereof as described in the Registration Statement and the
Prospectus, will not be an "investment company" as defined in the
Investment Company Act without taking account of any exemption
arising out of the number of holders of the Company's securities; and
(f) The Registration Statement is effective under the Act, any
required filing of the Prospectus and any supplement thereto pursuant
to Rule 424(b) has been made in the manner and within the time period
required by Rule 424(b) and, to the best knowledge of such counsel,
no stop order with respect thereto has been issued, or proceeding for
that purpose has been instituted or threatened, by the Commission.
In rendering such opinion, such counsel may (A) rely as to matters
involving the application of laws of any jurisdiction other than the
jurisdiction of incorporation of the Company, the State of New York or the
Federal laws of the United States, to the extent it
16
deems proper and specified in such opinion, upon the opinion of other counsel
of good standing whom it believes to be reliable and who are satisfactory to
counsel for the Underwriters; and (B) rely, as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of the Company
and public officials.
In addition, such counsel shall advise by letter, based on such counsel's
participation in the preparation of the Registration Statement and the
Prospectus (but without independent check or verification of the contents
thereof except as specified therein), that:
(i) The Registration Statement, as of its effective date, and
the Prospectus, as of the date of the supplement to the Basic
Prospectus (in each case, except for the documents incorporated by
reference therein, the financial statements and other financial and
statistical data included or incorporated by reference therein, as to
which such counsel need express no view) appeared on their face to be
appropriately responsive in all material respects to the requirements
of the Act and the Rules and Regulations; and
(ii) such counsel has no reason to believe that the Registration
Statement (except the financial statements and other financial and
statistical data included or incorporated by reference therein, as to
which such counsel need express no view), at the Execution Time or on
the Delivery Date, contained or contains any untrue statement of a
material fact or omitted 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, or that the Prospectus (except as aforesaid), at the
Execution Time and on the Delivery Date, contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
10.1.4. At the Delivery Date, the Company shall have requested and
caused PricewaterhouseCoopers LLP to furnish to the Representatives a
letter, dated as of the Delivery Date in form and substance satisfactory
to the Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the applicable
rules and regulations thereunder and containing statements and information
of the type ordinarily included in accountants' "comfort letters" with
respect to the consolidated financial statements of the Company and
certain financial information contained in the Prospectus and the
Registration Statement (including information incorporated in each such
Prospectus and the Registration Statement by reference) and substantially
in the form set forth as Exhibit B hereto.
17
10.1.5. The Representatives shall have received, on the Delivery
Date, from Fried, Frank, Harris, Shriver & Jacobson, counsel for the
Underwriters, such opinion or opinions, dated the Delivery Date, with
respect to the issuance and sale of the Underwritten Securities, the
Indenture, the Registration Statement, the Prospectus and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel documents as they request for the
purpose of enabling them to pass upon such matters.
10.1.6. The Company shall have furnished to the Representatives, on
the Delivery Date, a certificate of the Company, signed by the Executive
Vice President and Chief Financial Officer, or the Vice
President-Treasury, Mergers and Acquisitions or any other officer
reasonably satisfactory to the Representatives, dated the Delivery Date,
to the effect that the signers of such certificate have carefully examined
the Registration Statement, the Prospectus and this Agreement and that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Delivery Date with the same effect as if made on the Delivery
Date and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to the Delivery Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and remains in effect and no
proceedings for that purpose are pending or, to the knowledge of each
such person, threatened by the Commission, and no order directed to
any document incorporated by reference in the Prospectus has been
issued and remains in effect or, to the knowledge of each such
person, is threatened to be issued by the Commission; and
(iii) Since the date of the most recent financial statements
included or incorporated by reference in the Prospectus, there has
been no material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus.
10.2. The Underwritten Securities shall be eligible for clearance and
settlement through The Depository Trust Company.
10.3. Subsequent to the Execution Time, there shall not have been any
18
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended or
potential decrease in any such rating or any notice that the Company's debt
securities is under surveillance or review.
10.4. The Indenture shall have been duly executed and delivered by the
Company and the Trustee, the Underwritten Securities shall have been duly
executed and delivered by the Company and duly authenticated by the Trustee.
10.5. No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental agency or
body which would, as of the Delivery Date, prevent the issuance or sale of the
Underwritten Securities; and no injunction, restraining order or order of any
other nature by any federal or state court of competent jurisdiction shall have
been issued as of the Delivery Date which would prevent the issuance or sale of
the Underwritten Securities.
10.6. Prior to the Delivery Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 10 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or
if any of the opinions, letters and certificates mentioned above or elsewhere
in this Agreement shall not be in all material respects reasonably satisfactory
in form and substance to the Representatives and counsel for the Underwriters,
this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, the Delivery Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 10 will be
delivered at the office of counsel for the Underwriters, at One New York Plaza,
New York, New York 10004, on the Delivery Date.
11. Survival of Representations and Indemnification. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or the Company or any
of the officers, directors or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of subsection 7.8 and Section 8 hereof shall survive the termination
or cancellation of this Agreement.
12. Payment of Expenses. (a) Whether or not the transactions contemplated
by this Agreement are consummated or this Agreement is terminated, the Company
will pay
19
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 Underwritten
Securities and any taxes payable in that connection; (ii) the costs incident to
the preparation, printing and filing under the Act of the Registration
Statement and the Prospectus (including all exhibits, amendments and
supplements thereto) and the distribution thereof; (iii) the costs of
reproducing and distributing the Terms Agreement and the Underwritten
Securities; (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 Underwritten 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
Underwritten 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 and application fees incurred in connection
with any filing with, and clearance of any offering by, the National
Association of Securities Dealers, Inc.. It is understood, however, that,
except as provided in this Section, and Sections 7.8 and 8.1 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees
of their counsel, transfer taxes on resale of any of the Underwritten
Securities by them, and any advertising expenses connected with any offers they
may make.
13. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to the Salomon Smith Barney General Counsel (fax no.: (212)
816-7912) and confirmed to the General Counsel, Salomon Smith Barney at 388
Greenwich Street, New York, New York 10013 Attention: General Counsel, and to
the JP Morgan General Counsel (fax no.: (212) 270-7473) and confirmed to the
General Counsel, JP Morgan at 270 Park Avenue, New York, New York 10017,
Attention: General Counsel; or, if sent to the Company, will be mailed,
delivered or telefaxed to Sam Fried, Esq., General Counsel of Limited Brands
(fax no.: (614) 415-7188), and confirmed to Sam Fried, Esq., General Counsel of
Limited Brands, Inc. at Three Limited Parkway, P.O. Box 16000, Columbus, Ohio
43216, Attention of the Legal Department.
14. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
16. Applicable Law. This Agreement will be governed by and construed in
20
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
21