Exhibit 1.1
MARRIOTT INTERNATIONAL, INC.
Debt Securities
UNDERWRITING AGREEMENT GENERAL TERMS AND PROVISIONS
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September 15, 1999
Marriott International, Inc., a Delaware corporation (the "Company"),
proposes to enter into a Terms Agreement in the form of Annex I hereto (the
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"Terms Agreement"), which incorporates by reference these Underwriting Agreement
General Terms and Provisions, and subject to the terms and conditions stated
herein and therein, to issue and sell to the firms named in Schedule I to the
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Terms Agreement (such firms constituting the "Underwriters" with respect to the
Terms Agreement and the securities specified therein) certain of its debt
securities specified in Schedule II to the Terms Agreement (the "Securities").
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The representative or representatives of the Underwriters, if any, specified in
the Terms Agreement are hereinafter referred to as the "Representatives";
provided, however, that if the Terms Agreement does not specify any
representative of the Underwriters, the term "Representatives", as used in this
Agreement shall mean the Underwriters.
1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (File No. 333-77093),
and any amendments thereto, with respect to the Securities have (i)
been prepared by the Company in conformity with the requirements of
the Securities Act of 1933 (the "Securities Act") and the rules and
regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, (ii) been filed
with the Commission under the Securities Act, and (iii) become
effective under the Securities Act. The Indenture pursuant to which
the Securities will be issued (the "Indenture") has been qualified
under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). Copies of such registration statement and any
amendments thereto have been delivered by the Company to the
Representatives. As used in this Agreement, "Preliminary Prospectus"
means each prospectus (including all documents incorporated therein by
reference) included in such registration statement, or amendments
thereof, before it became effective under the Securities Act and any
prospectus filed with the Commission by the Company with the consent
of the Representatives pursuant to Rule 424(a) of the Rules and
Regulations; "Registration Statement" means such registration
statement when it became effective under the Securities Act, and as
from time to time amended or supplemented thereafter at the time of
effectiveness of such amendment or filing of such supplement with the
Commission (including all documents incorporated therein by
reference); "Basic Prospectus" means the prospectus (including all
documents incorporated therein by reference) included in the
Registration Statement; and "Prospectus" means the Basic Prospectus,
together with any amendment or supplements thereto, as first filed
with the Commission pursuant to paragraph (2) or (5) of Rule 424(b)
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of the Rules and Regulations. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus.
(b) The Registration Statement and any amendment thereto, as of
their respective effective dates, and the Prospectus, as of its issue
date, complied as to form in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and the
applicable rules and regulations of the Commission thereunder; and the
Registration Statement and any amendment thereto, as of their
respective effective dates (and, if an Annual Report on Form 10-K of
the Company has been filed subsequent to the effective date of the
Registration Statement, as of the date of filing of the most recent
such Annual Report on Form 10-K), did not contain or will not contain,
as the case may be, an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and the
Prospectus does not and will not as of the Delivery Date (as
hereinafter defined) contain an untrue statement of material fact or
omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter of the Securities through the
Representatives expressly for use in the Prospectus or as to any
statement in or omissions from the statement of eligibility and
qualifications on Form T-1 of the Trustee under the Trust Indenture
Act.
(c) The documents, if any, incorporated by reference in the
Prospectus, when they were filed with the Commission, complied in all
material respects with the requirements of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the applicable rules and
regulations of the Commission thereunder, and none of such documents,
when read together with the other information in the Prospectus, as of
the issue date of the Prospectus, contains an untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in
the Prospectus when such documents are filed with the Commission, as
the case may be, will comply as to form in all material respects with
the requirements of the Exchange Act and the applicable rules and
regulations of the Commission thereunder, and, when read together with
the other information in the Prospectus, will not as of their
respective filing dates, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
the Securities through the Representatives expressly for use in the
Prospectus.
(d) The Company and each of its subsidiaries (as defined in
Section 13) have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation, are duly qualified to do business and
are in good standing as foreign corporations in each jurisdiction in
which their respective ownership or lease of property or the conduct
of their respective businesses requires such qualification and in
which the failure to so qualify would or could reasonably be expected
to have a material adverse effect on the business or the
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condition (financial or otherwise) or on the earnings or business
affairs of the Company and its subsidiaries as a whole (a "Material
Adverse Effect"), and have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in
which they are engaged.
(e) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus in the column entitled
"Historical" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to reservations, warrants, agreements,
options, employee benefit plans or the exercise of convertible
securities referred to in the Prospectus and except for share
repurchases by the Company consistent with disclosure in the
Prospectus). All of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued and are fully paid, non-assessable and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims, except for any liens, encumbrances, equities or
claims that would not, in the aggregate, have a Material Averse
Effect.
(f) The execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated
hereby and compliance by the Company with the provisions of the
Indenture and the Securities will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, except
for such conflicts, breaches, violations or defaults that would not
result in a Material Adverse Effect, nor will such actions result in
any violation of any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties or
assets, except for such violations that would not result in a Material
Adverse Effect, nor will such actions result in any violation of the
provisions of the charter or by-laws of the Company or any of its
subsidiaries; and except for the registration of the Securities under
the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Trust
Indenture Act or the Exchange Act and applicable state or foreign
securities laws in connection with the purchase and distribution of
the Securities by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution,
delivery and performance of this Agreement and the Indenture by the
Company and the consummation of the transactions contemplated hereby.
(g) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require
the Company to include any securities owned or to be owned by such
person in the securities registered pursuant to the Registration
Statement, or to require the Company to file any other registration
statement under the Securities Act with respect to any securities of
the Company owned or to be owned by such person as a result of the
filing of the Registration Statement or the issuance of any Securities
or to require the Company to include such securities in any
securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
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(h) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due execution and delivery
thereof by the trustee under the Indenture (the "Trustee")) will
constitute the valid and legally binding obligation of the Company,
enforceable in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing; the Securities have been duly authorized, and,
upon execution by the Company and authentication by the Trustee in the
manner provided in the Indenture and delivery against payment therefor
as provided herein, will be validly issued and outstanding, and will
constitute the valid and legally binding obligations of the Company,
enforceable in accordance with their terms and entitled to the
benefits of the Indenture, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing; and the Securities and the Indenture conform in all
material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus.
(i) Except as otherwise disclosed in the Prospectus, neither the
Company nor any of its subsidiaries has sustained, since the date of
the latest audited financial statements included in the Prospectus,
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, which
would or could reasonably be expected to have a Material Adverse
Effect; and, since such date, there has not been any material change
in the capital stock or long-term debt of the Company or any of its
subsidiaries or any change or development which has had a Material
Adverse Effect.
(j) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Prospectus present fairly
in all material respects the financial condition and results of
operations of the entities purported to be shown thereby, at the dates
and for the periods indicated, and (except to the extent, if any,
otherwise disclosed therein) have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved.
(k) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇"), who have certified
certain financial statements of the Company and whose report appears
or is incorporated by reference in the Prospectus, are independent
public accountants with respect to the Company and its subsidiaries
within the meaning of Regulation S-X under the Securities Act during
the periods covered by the financial statements on which they reported
contained in the Prospectus.
(l) Except as described in the Prospectus or the documents
incorporated therein by reference, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which would or could reasonably be
expected to have a Material Adverse Effect or which is required to be
described in the Prospectus; and to
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the knowledge of the Company, no such proceedings are threatened by
governmental authorities or by others.
(m) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the
Securities Act or by the Rules and Regulations which have not been
filed or incorporated by reference as exhibits to the Registration
Statement.
(n) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any
material respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound
or to which any of its properties or assets is subject or (iii) is in
violation of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject or
has failed to obtain any license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership
of its property or to the conduct of its business except, in the case
of clauses (ii) and (iii), for those defaults, violations or failures
which, either individually or in the aggregate, would not or could not
reasonably be expected to have a Material Adverse Effect.
2. Purchase and Offering of Securities; Terms Agreement. The
obligation of the Underwriters to purchase, and the Company to sell, the
Securities will be evidenced by a Terms Agreement delivered at the time the
Company determines to sell the Securities. The obligations of the Underwriters
to purchase the Securities will be several and not joint. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the principal amount of the Securities to be purchased by each
Underwriter, the purchase price to be paid by the Underwriters for the
Securities, the public offering price, if any, of the Securities, certain terms
thereof and the Underwriters, compensation therefor, any of the terms of the
Securities not already specified in the Indenture (including, but not limited
to, designations, denominations, interest rate or rates (and method of
calculation thereof) and payment dates, maturity, redemption provisions and
sinking fund requirements) and the written information that has been furnished
to the Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion in the Registration Statement or the Prospectus. The
Terms Agreement also specifies any details of the terms of the offering which
should be reflected in a post-effective amendment to the Registration Statement
or the supplement to the Prospectus relating to the offering of the Securities.
3. Delivery of and Payment for the Securities. The Company shall not
be obligated to deliver any Securities except upon payment for all the
Securities to be purchased pursuant to this Agreement as hereinafter provided.
Delivery of and payment for the Securities shall be made at the office
of the Representatives at such address and time as may be specified in the Terms
Agreement. This date and time are sometimes referred to as the "Delivery Date".
On the Delivery Date, the Company shall deliver the 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 such type of funds as shall be
specified in the Terms Agreement. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a
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further condition of the obligation of each Underwriter hereunder. Upon
delivery, the Securities shall be in definitive form to the extent practicable
and registered in such names and in such denominations as the Representatives
shall request in writing not less than two full business days prior to the
Delivery Date. For the purpose of expediting the checking and packaging of the
Securities, the Company shall make the Securities available for inspection by
the Representatives in New York, New York, not later than 5:00 P.M., New York
City time, on the business day prior to the Delivery Date.
4. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus relating to the Securities in a form
approved by the Representatives and to file such Prospectus with the
Commission pursuant to Rule 424(b) of the Rules and Regulations not later
than the close of business on the second business day following the
execution and delivery of the Terms Agreement; and to timely file with the
Commission during any period in which, in the reasonable opinion of counsel
for the Representatives, any Prospectus that is required by law to be
delivered in connection with sales of the Securities, all documents (and
any amendments to previously filed documents) required to be filed by the
Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act;
(b) To advise the Representatives, promptly after it receives notice
thereof, of (i) the time when any post-effective amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish the Representatives with such number of copies thereof as the
Representatives may reasonably request; (ii) 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, of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose;
(iii) any request by the Commission for the amending or supplementing of
the Registration Statement or the Prospectus (including any document
incorporated therein by reference) or for additional information; and (iv)
during any period prior to the expiration of nine months after the date of
issue of the Prospectus in which, in the reasonable opinion of counsel for
the Representatives, a prospectus relating to the Securities is required to
be delivered under the Securities Act, the happening of any event which
makes untrue any statement of a material fact made in the Registration
Statement or the Prospectus or which requires the making of a change in the
Registration Statement or the Prospectus in order to make any statement of
a material fact therein not misleading;
(c) In the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or suspending any such qualification, to make every reasonable
effort to obtain its withdrawal;
(d) To furnish promptly to each of the Representatives and to counsel
for the Underwriters a signed copy of the Registration Statement as
originally filed with the Commission and each amendment thereto, a copy of
each Prospectus filed with the Commission, including all supplements
thereto and all documents incorporated therein by reference and all
consents and exhibits filed therewith;
(e) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits
other than the computation of the ratio of earnings to fixed charges, the
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Indenture and this Agreement), (ii) each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus and (iii) any
documents incorporated by reference in the Prospectus; and if, during any
period prior to the expiration of nine months after the date of issue of
the Prospectus in which, in the reasonable opinion of counsel for the
Representatives, a prospectus relating to the Securities is required to be
delivered under the Securities Act, any event 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 not
misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus in order to comply with
the Securities Act, to notify the Representatives and to promptly prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance; and in case any Underwriter is required to deliver a prospectus
in connection with the Securities at any time nine months or more after the
date of issue of the Prospectus, upon the request of the Representatives
but at the expense of such Underwriter, to prepare and deliver to such
Underwriter as many copies as the Representatives may reasonably request of
an amended or supplemented Prospectus complying with Section 10(a)(3) of
the Securities Act;
(f) To file promptly with the Commission any amendment to the
Registration Statement, or the Prospectus or any supplement to the
Prospectus, that may, in the judgment of the Company or the
Representatives, be required by the Securities Act or requested by the
Commission;
(g) During any period prior to the expiration of nine months after
the date of issue of the Prospectus in which, in the reasonable opinion of
counsel for the Representatives, a prospectus relating to the Securities is
required to be delivered under the Securities Act, prior to filing with the
Commission any (i) amendment to the Registration Statement or supplement to
the Prospectus or any Prospectus pursuant to Rule 424 of the Rules and
Regulations, or (ii) any document incorporated by reference in any of the
foregoing or any amendment of or supplement to any such incorporated
document, to furnish a copy thereof to the Representatives and not to file
any such document to which the Representatives shall reasonably object
after having been given reasonable notice of the proposed filing thereof;
(h) As soon as practicable, to make generally available to the
Company's security holders and to deliver to the Representatives an earning
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 (including, at the option of the Company, Rule 158) covering
the period beginning not later than the first day of the fiscal quarter
next following each date which (i) under Section 11(a) of the Securities
Act and the Rules and Regulations is an "effective date" (as defined in
Rule 158) of the Registration Statement for purposes of said Section 11(a)
and (ii) is not later than the Delivery Date;
(i) For one year after the Delivery Date, to furnish to the
Representatives, as they may reasonably request, and, upon request, to each
of the Underwriters, if any, as soon as practicable after the end of each
fiscal year, such number of copies as the Representatives shall reasonably
request of all materials furnished by the Company to its stockholders and
all public reports and all reports and financial statements furnished by
the Company to any national securities exchange pursuant to requirements of
or agreements with such exchange or to the Commission pursuant to
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the Exchange Act or any rule or regulation of the Commission thereunder and
from time to time, such other information concerning the Company as the
Representatives may reasonably request;
(j) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may reasonably 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 Securities; provided that in connection therewith the Company shall
not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject or subject itself to liability or expense which is
disproportionate to the benefit to be realized by so qualifying the
Securities in such jurisdiction;
(k) During the period beginning on the date of the Terms Agreement
and continuing to the Delivery Date, not to offer or sell, or cause to be
offered and sold without the prior consent of the Representatives, any debt
securities which are substantially similar to the Securities; and
(l) Promptly from time to time to take all reasonable action
necessary to enable Standard & Poor's Ratings Group, a division of McGraw
Hill, Inc. ("S&P"), and ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), as
applicable, to provide their respective credit ratings of the Securities.
5. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Securities and any taxes
payable in that connection; (b) the costs incident to the preparation, printing
and filing under the Securities Act of the Registration Statement and any
amendments and exhibits thereto; (c) the costs of distributing the Registration
Statement as originally filed and each amendment thereto and any post-effective
amendments thereto (including, in each case, exhibits), any Preliminary
Prospectus, the Prospectus and any amendment or supplement to the Prospectus,
all as provided in this Agreement; (d) the costs of reproducing and distributing
this Agreement; (e) the filing fees incident to securing any required review by
the National Association of Securities Dealers, Inc. of the terms of sale of the
Securities; (f) the fees and expenses of filings, if any, with foreign
securities administrators and of qualifying the Securities under the securities
laws of the several jurisdictions as provided in Section 4(j); (g) the fees paid
to rating agencies in connection with the rating of the Securities; and (h) all
other costs and expenses incident to the performance of the obligations of the
Company under this Agreement; provided that except as provided in this Section 5
and in Section 10, the Underwriters shall pay their own costs and expenses,
including the costs and expenses of their counsel, any transfer taxes on the
Securities which they may sell and the expenses of advertising any offering of
the Securities made by the Underwriters, and the Company shall pay the fees and
expenses of its counsel and any transfer taxes payable in connection with its
sale of Securities to the Underwriters.
6. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder with respect to the 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 performance of the Company of its obligations hereunder, and to each of the
following additional terms and conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission; and
any request of the Commission for inclusion of additional
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information in the Registration Statement or the Prospectus or otherwise
shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Company
on or prior to the Delivery Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of counsel for the Underwriters,
is material or omits to state a fact which, in the opinion of such counsel,
is material and is required to be stated therein or is necessary to make
the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Indenture, the
Securities, the Registration Statement and the Prospectus, and all other
legal matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects to counsel
for the Underwriters, and the Company shall have furnished to such counsel
all documents and information that they may reasonably request to enable
them to pass upon such matters.
(d) The Company's Law Department, as counsel to the Company, shall
have furnished to the Representatives a written opinion signed on behalf of
the Law Department by the Company's general counsel, deputy general
counsel, or associate or assistant general counsel responsible for
corporate finance, addressed to the Underwriters, and dated the Delivery
Date, in form and substance reasonably satisfactory to the Representatives
to the effect that:
(i) The Company and each of its consolidated subsidiaries (the
"Designated Subsidiaries") have been duly incorporated and are validly
existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation and have all power and
authority necessary to own or hold their respective properties and
conduct the businesses in which they are engaged as described in the
Prospectus except, in each case, where the failure to so qualify would
not result in a Material Adverse Effect;
(ii) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus in the column entitled
"Historical" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to reservations, warrants, agreements,
options, employee benefit plans or the exercise of convertible
securities referred to in the Prospectus and except for share
repurchases by the Company consistent with disclosure in the
Prospectus). All of the issued shares of capital stock of each
Designated Subsidiary have been duly and validly authorized and issued
and are fully paid, non-assessable and owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or
claims, except for such liens, encumbrances, equities or claims that
would not, in the aggregate, have a Material Adverse Effect;
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the Trust Indenture
Act, and, assuming due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of
the Company enforceable against the Company in accordance with its
terms;
(iv) The form of certificate representing the Securities is in
the form contemplated by the Indenture; the Securities have been duly
authorized, executed, issued and delivered by the Company, and
assuming due authentication thereof by the Trustee
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and upon payment and delivery in accordance with this Agreement, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture;
(v) The Registration Statement was declared effective under
the Securities Act as of the date and time specified in such opinion
and, to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose is pending by the Commission;
(vi) The Registration Statement and any further amendments
thereto made by the Company on or prior to the date of the Terms
Agreement, as of their respective effective dates, and the Prospectus,
as of its issue date, complied in all material respects with the
requirements of the Securities Act, the Trust Indenture Act and the
applicable rules and regulations under said Acts, and all documents
incorporated by reference therein complied in all material respects
with the requirements of the Exchange Act and the applicable rules and
regulations thereunder (except that in each case such counsel need
express no opinion with respect to the financial statements and
related schedules and other financial data included therein); and the
Indenture complies in all material respects with the requirements of
the Trust Indenture Act and the applicable rules and regulations
thereunder;
(vii) The Securities and the Indenture conform in all material
respects to the statements concerning them in the Registration
Statement and the Prospectus;
(viii) To such counsel's knowledge and other than as described
in the Prospectus or the documents incorporated by reference therein,
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which would
or could reasonably be expected to have a Material Adverse Effect;
and, to such counsel's knowledge, no such proceedings are threatened
by governmental authorities or by others;
(ix) The Terms Agreement (including the provisions of this
Agreement) has been duly authorized, executed and delivered by the
Company; and
(x) The issuance and sale of the Securities by the Company and
the compliance by the Company with all of the provisions of the Terms
Agreement (including the provisions of this Agreement) and the
Indenture and the consummation of the transactions contemplated
thereby will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument known to such counsel to which the Company or
any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, except for such
conflicts, breaches, violations or defaults that would not result in a
Material Adverse Effect, nor will such actions result in any violation
of any statute or any order, rule or regulation known to such counsel
of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties or
assets, except for such violations that would not result in a Material
Adverse Effect, nor will such actions result
-10-
in any violation of the provisions of the charter or by-laws of the
Company or any Designated Subsidiary; and, except for the registration
of the Securities under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Trust Indenture Act, the Exchange Act and
applicable state or foreign securities laws in connection with the
purchase and distribution of the Securities by the Underwriters, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of the Terms
Agreement (including the provisions of this Agreement) by the Company
and the consummation of the transactions contemplated hereby.
In addition, such opinion shall state that the signatory thereto is the
general counsel, the deputy general counsel or the associate or assistant
general counsel responsible for finance and securities matters, of the
Company and that Law Department lawyers have participated in conferences
with officers and other representatives of the Company, representatives of
the independent public accountants for the Company and the Representatives
at which the contents of the Registration Statement and Prospectus and
related matters were discussed and, although such counsel is not passing
upon and does not assume any responsibility for, and shall not be deemed to
have independently verified, the accuracy, completeness or fairness of the
statements contained in the Registration Statement and Prospectus, on the
basis of the foregoing, no facts have come to the attention of such
signatory which lead him to believe that the Registration Statement or any
amendment thereto (including the documents incorporated by reference in the
Prospectus), as of its respective effective or filing date (or, if an
Annual Report on Form 10-K of the Company has been filed subsequent to the
effective date thereof, as of the date of filing of the most recent such
Annual Report on Form 10-K), as the case may be, contained an 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 not
misleading, or that the Prospectus or any amendment or supplement thereto
(including the documents incorporated by reference therein) as of the date
of such opinion, contains an untrue statement of a material fact or omits
to state 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 (except that, in each case, such opinion need express
no comment with respect to the financial statements and related schedules
or other financial data included in the Registration Statement or the
Prospectus).
In rendering such opinion, such signatory may (i) state that the
opinion is limited to matters governed by the federal laws of the United
States of America, and the General Corporation Law of the State of
Delaware, and such signatory may rely as to matters of New York law upon
the opinion of Piper & Marbury L.L.P. , counsel for the Underwriters, (ii)
rely as to matters of fact upon certificates of officers of the Company and
its subsidiaries; provided that such signatory shall furnish copies thereof
to the Representatives and state that they believe that the Underwriters
and they are justified in relying upon such certificates, and (iii) state
that their opinions set forth in subparagraphs (iii) and (iv) above are
subject to the qualification that the enforceability of the Company's
obligations under the Indenture and the Securities may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law) or by an implied covenant of good faith and
fair dealing.
-11-
(e) The Representatives shall have received from counsel for the
Underwriters, such opinion or opinions, dated the Closing Date, with
respect to the incorporation of the Company, the validity of the
Securities, the Registration Statement, the Prospectus and other related
matters as they may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(f) The Company shall have furnished to the Representatives a letter
(as used in this paragraph, the "letter") of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, addressed to
the Underwriters and dated the Delivery 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 letter, or for specified
financial information given in the Prospectus, as of a date not more than
five business days prior to the date of the letter, the conclusions and
findings of such firm with respect to the financial information and other
matters covered by the letter;
(g) The Company shall have furnished to the Representatives a
certificate, dated the Delivery Date, of its chief financial and accounting
officers stating that:
(i) The representations and warranties of the Company in
Section 1 are true and correct as of the Delivery Date; the Company
has complied with all its agreements contained herein; and the
conditions set forth in Sections 6(a), 6(h) and 6(j) have been
fulfilled; and
(ii) They have carefully examined the Registration Statement
and the Prospectus and, in their opinion (A) as of its effective date
(or, if an Annual Report on Form 10-K of the Company has been filed
subsequent to the effective date thereof, as of the date of filing of
the most recent such Annual Report on Form 10-K) the Registration
Statement did not include any untrue statement of a material fact and
did not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (B) the
Prospectus does not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(h) Neither the Company nor any of its subsidiaries shall have
sustained, since the date of the latest audited financial statements
included in the Prospectus, any (i) 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 which would reasonably be expected to have a Material Adverse
Effect, otherwise than as set forth or contemplated in the Prospectus at
the date hereof or (ii) since such date there shall not have been any
material change in the capital stock or long-term debt of the Company or
any of its subsidiaries (otherwise than as set forth or contemplated in the
Prospectus) or any change or development which has had a Material Adverse
Effect, otherwise than as set forth or contemplated in the Prospectus at
the date hereof, the effect of which, in any such case described in clause
(i) or (ii), is, in the judgment of the Representatives, so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities being delivered on the
Delivery Date on the terms and in the manner contemplated herein or in the
Prospectus.
-12-
(i) 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, Inc., the American Stock Exchange
or the over-the-counter market shall have been suspended or minimum prices
shall have been established on either of such exchanges or such market by
the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall
have been declared by Federal authorities, (iii) the United States shall
have become engaged in hostilities, there shall have been an 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 (or the effect of international
conditions on the financial markets in the United States shall be such) as
to make it in each such case, in the judgment of a majority in interest of
the several Underwriters, impracticable or inadvisable to proceed with the
public offering or the delivery of the Securities being delivered on the
Delivery Date on the terms and in the manner contemplated herein or in the
Prospectus.
(j) On the Delivery Date, unless otherwise provided in Schedule II to
-----------
the Terms Agreement, the Securities shall be rated at least Baa1 by Moody's
Investor's Service Inc. and BBB+ by Standard & Poor's Corporation, and the
Company shall have delivered to the Representatives a letter dated the
Closing Time, from each such rating agency, or other evidence satisfactory
to the Representatives, confirming that the Securities have such ratings;
and since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Securities or any of the
Company's other debt securities by any nationally recognized securities
rating agency, and no such securities rating agency shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of the Securities or any of the Company's other
debt.
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.
7. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of the
Securities Act or 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 Securities), to which that Underwriter 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 or the
Prospectus or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and shall reimburse
each Underwriter and each such controlling person for any legal or other
expenses reasonably incurred by that Underwriter 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 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
or the Prospectus or in any such amendment or
-13-
supplement 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. The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to any
Underwriter or to any controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, each of its directors (including any person who, with
his or her consent, is named in the Registration Statement as about to become a
director of the Company), each of its officers and each person, if any, who
controls the Company within the meaning of the Securities Act or 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 or any such director,
officer 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 or the Prospectus or in any amendment or supplement thereto or (ii)
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, 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 furnished to the Company through the
Representatives by or on behalf of that Underwriter specifically for inclusion
therein, and shall reimburse the Company and any such director, officer or
controlling person for any legal or other expenses reasonably incurred by the
Company or any such director, officer 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. The foregoing
indemnity agreement is in addition to any liability which any Underwriter may
otherwise have to the Company or any such director, officer or controlling
person.
(c) Promptly after receipt by an indemnified party under this Section
7 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 7, 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 this Section 7 except to the extent it has
been materially prejudiced 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 this Section 7.
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 7 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
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof and the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and such indemnified party
shall have been advised by such counsel that the representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel or (ii) the
indemnifying party has failed to assume the defense of such action within a
reasonable period of time, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the
-14-
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such action on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm or attorneys at any time for all such indemnified parties, which
firm shall be designated in writing by the Representatives, if the indemnified
parties under this Section 7 consist of any Underwriter or any of their
respective controlling persons, or by the Company, if the indemnified parties
under this Section consist of the Company or any of the Company's directors,
officers or controlling persons. Each indemnified party, as a condition of the
indemnity agreements contained in Section 7(a) and 7(b), shall use its best
efforts to cooperate with the indemnifying party in the defense of such action
or claim. No indemnifying party shall 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 its written consent or if there be a
final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss of liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 7 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 7(a) or 7(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 on the one hand and the Underwriters on the other from
the offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law or if the indemnified party failed to
give the notice required under Section 7(c), in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Underwriters on the other with respect to the statements or omissions which
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 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 Securities purchased under the Terms
Agreement (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters with respect
to the Securities purchased under the Terms Agreement. 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 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. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
Section 7(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 which 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 7(d) shall be deemed to include, for purposes
of this Section 7(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 7(d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public was offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any 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)
-15-
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 7(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) The agreements contained in this Section 7 and the
representations, warranties and agreements of the Company in Sections 1 and 4
shall survive the delivery of the Securities and shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
8. Defaulting Underwriters. If any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining non-
defaulting Underwriters shall be obligated to purchase the Securities which the
defaulting Underwriter agreed but failed to purchase in the respective
proportions which the principal amount of Securities set forth in the Terms
Agreement to be purchased by each remaining non-defaulting Underwriter set forth
therein bears to the total principal amount of the Securities set forth therein;
provided, however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any Securities on the Delivery Date if the aggregate
principal amount of the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 9.09% of the
total principal amount of the Securities, and any remaining non-defaulting
Underwriter shall not be obligated to purchase more than 110% of the principal
amount of Securities set forth in the Terms Agreement to be purchased by it. If
the foregoing maximums are exceeded, the remaining non-defaulting Underwriters,
or those other underwriters satisfactory to the Representatives who so agree,
shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, all the Securities. If the
remaining Underwriters or other underwriters satisfactory to the Representatives
do not elect to purchase the principal amount which the defaulting Underwriter
or Underwriters agreed but failed to purchase, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the Company,
except that the Company will continue to be liable for the payment of expenses
to the extent set forth in Sections 5 and 10.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company for damages caused by its default. If
other underwriters are obligated or agree to purchase the Securities of a
defaulting or withdrawing Underwriter, either the Representatives or the Company
may postpone the Delivery 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.
9. Effective Date and Termination. The obligations of the
Underwriters hereunder may be terminated by the Representatives by notice given
to and received by the Company prior to delivery of any payment for the
Securities if, prior to that time, the events described in any of Section 6(h),
6(i) or 6(j) shall have occurred.
10. Reimbursement of Underwriters' Expenses. If (a) the Company
shall fail to tender the Securities for delivery to the Underwriters for any
reason permitted under this Agreement or (b) the Underwriters shall decline to
purchase the Securities for any reason permitted under this Agreement (including
the termination of this Agreement pursuant to Section 9), the Company shall
reimburse the Underwriters for the reasonable fees and expenses of their counsel
and for such other out-of-pocket expenses as shall have been reasonably incurred
by them in connection with this Agreement and the proposed purchase of the
Securities, and upon demand the Company shall pay the full amount thereof to the
Representatives. If this Agreement is terminated pursuant to Section 8 by
reason of the default of one
-16-
or more Underwriters, the Company shall not be obligated to reimburse any
defaulting Underwriter on account of those expenses.
11. Notices, etc. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement on behalf of the Representatives. Any
notice by the Company to the Underwriters shall be sufficient if given in
writing or by any standard form of telecommunication addressed to the
Representatives at such address and time as may be specified in the Terms
Agreement, and any notice by the Underwriters to the Company shall be sufficient
if given in writing or by any standard form of telecommunication to the address
of the Company set forth in the Registration Statement, Attention: Treasurer
(Dept. 52/924.11), with a copy to the same address, Attention: Law Department-
Corporate Finance (Dept. 52/923.23).
12. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters and the Company and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (A) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act and (B) the indemnity
agreement of the Underwriters contained in Section 7(b) of this Agreement shall
be deemed to be for the benefit of directors of the Company, officers of the
Company and any person controlling the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section 12, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
13. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means any day on which the NYSE
is open for trading and (b) "subsidiary" means a consolidated subsidiary of the
Company that falls within the meaning set forth in Rule 405 of the Rules and
Regulations.
14. Governing Law. This Agreement (including the Terms Agreement)
shall be governed by and construed in accordance with the laws of New York
(without giving effect to the principles of choice of law).
15. Counterparts. The Terms Agreement may be executed in one or more
counterparts and, and if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
16. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
-17-
ANNEX I
Terms Agreement
---------------
[names of underwriter(s)]
c/o [name of underwriter]
[Date]
Dear Ladies and Gentlemen:
Marriott International, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement General Terms and Provisions (the "Terms and Provisions")
attached hereto, to issue and sell to each of the Underwriters named in Schedule
--------
I hereto (the "Underwriters"), and each of the Underwriters agrees, severally
-
and not jointly, to purchase from the Company, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II hereto, the
-----------
principal amount of Securities set forth opposite the name of such Underwriter
in Schedule I hereto. Each of the provisions of the Terms and Provisions is
----------
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Terms
Agreement. Each reference to the Representatives herein and in the provisions
of the Terms and Provisions so incorporated by reference shall be deemed to
refer to you. Terms defined in the Terms and Provisions and the address of the
Representatives referred to in Section 11 of the Terms and Provisions and the
address of the Representatives referred to in such Section 11 are set forth in
Schedule II hereto.
-----------
The Representatives hereby confirm and the Company acknowledges that
the statements with respect to the public offering of the Securities by the
Underwriters set forth under the caption "_____________" in the Company's
Prospectus Supplement dated ____________ __, ____ to the Company's Prospectus
dated ____________ __, ____ relating to the Securities (the "Prospectus
Supplement") constitute the only information concerning such Underwriters
furnished in writing to the Company by or on behalf of the Underwriters
specifically for inclusion in the Prospectus Supplement.
If the foregoing is in accordance with your understanding, please sign
and return to us two counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Terms and Provisions incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination, upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
MARRIOTT INTERNATIONAL, INC.
By: ____________________
Name:
Title:
Accepted as of the date hereof:
[NAME(S) OF UNDERWRITER(S)]
By: [NAME OF UNDERWRITER]
By: _____________________
Name:
Title:
Schedule I
----------
Principal Amount of
Underwriter Securities to be Purchased
----------- --------------------------
[NAMES OF UNDERWRITERS]............... $
Total............................ $
-
Schedule II
-----------
Representatives:
Underwriting Agreement dated:
Registration Statement No.:
Title of Securities:
Aggregate principal amount: $_____________
Price to Public:
Underwriting Discount: ___%
Indenture:
Date of Maturity:
Interest Rate:
Interest Payment Dates:
Redemption Provisions:
Sinking Fund Provisions:
Other Provisions: As specified in the Prospectus Supplement
dated _______________ __, ____ relating to
the Securities.
Securities Exchange:
Closing Date and Delivery Date:
Closing Location:
Address for Notices
to Underwriters: