WACHOVIA
CAPITAL MARKETS, LLC
One
Wachovia Center
301
South
College Street
Charlotte,
North Carolina 28288
as
Representatives of the Several Underwriters
Ladies
and Gentlemen:
Lowe’s
Companies, Inc., a North Carolina corporation (the “Company”), confirms its
agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated (“Merrill Lynch”), J.P. Morgan Securities Inc. (“JPMorgan”)
and Wachovia Capital Markets, LLC (“Wachovia Securities” and together with
Merrill Lynch, JPMorgan and each of
the
other
Underwriters named in Schedule A hereto, collectively, the “Underwriters,” which
term shall also include any underwriter substituted as hereinafter provided
in
Section 10 hereof), for whom Merrill Lynch, JPMorgan and Wachovia
Securities are acting as representatives (in such capacity, the
“Representatives”) with respect to the issue and sale by the Company and
purchase by the Underwriters of up to $550,000,000 aggregate amount of its
5.60%
Notes due September 15, 2012 (the “2012 Notes”), up to $250,000,000
aggregate amount of its 6.10% Notes due September 15, 2017 (the “2017 Notes”)
and up to $500,000,000 aggregate amount of its 6.65% Notes due September
15,
2037 (the “2037 Notes” and, together with the 2012 Notes and the 2017 Notes, the
“Securities”) on the terms and conditions stated herein and in Schedule B.
The Securities are to be sold to each Underwriter, acting severally and not
jointly, in the respective principal amounts as are set forth in Schedule A
hereto opposite the name of such Underwriter. The Securities are to be issued
pursuant to an Amended and Restated Indenture dated as of December 1, 1995
as
supplemented by a Fifth Supplemental Indenture, dated as of September 11,
2007
(the “Indenture”), between the Company and The Bank of New York Trust Company,
N.A. as trustee (the “Trustee”). The Securities and the Indenture are more fully
described in the Prospectus referred to below.
The
Company has prepared and filed with the Securities and Exchange Commission
(the
“Commission”) an automatic shelf registration statement on Form S-3
(Registration No. 333-137750), including the related base prospectus, which
registration statement became effective upon filing under Rule 462(e) of
the
rules and regulations of the Commission (the “1933 Act Regulations”) under the
Securities Act of 1933, as amended (the “1933 Act”). Such registration statement
covers, among other securities, the registration of the Securities under
the
1933 Act. Promptly after execution and delivery of this Agreement, the Company
will prepare and file a prospectus in accordance with the provisions of Rule
430B (“Rule 430B”) of the 1933 Act Regulations and paragraph (b) of Rule 424
(“Rule 424(b)”) of the 1933 Act Regulations. Any information included in such
prospectus that was omitted from such registration statement at the time
it
became effective but that is deemed to be part of and included in such
registration statement pursuant to Rule 430B is referred to as “Rule 430B
Information.” The prospectus dated October 2, 2006 (the “Base Prospectus”)
together with the preliminary prospectus supplement dated September 6, 2007
used
in connection with the offering of the Securities is herein called the
“Preliminary Prospectus.” Such registration statement, at any given time,
including the amendments thereto to such time, the exhibits and any schedules
thereto at such time, the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act at such time and the documents
otherwise deemed to be a part thereof or included therein by 1933 Act
Regulations at such time, is herein called the “Registration Statement.” The
Registration Statement at the time it originally became effective is herein
called the “Original Registration Statement.” The Base Prospectus together with
the final prospectus supplement dated September 6, 2007 in the form first
furnished to the Underwriters for use in connection with the offering of
the
Securities, including the documents incorporated by reference therein pursuant
to Item 12 of the Form S-3 under the 1933 Act at the time of the execution
of
this Agreement is herein called the “Prospectus.” For purposes of this
Agreement, all references to the Registration Statement, the Preliminary
Prospectus, the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”).
All
references in this Agreement to financial statements and schedules and other
information which is “contained,” “included” or “stated” in the Registration
Statement, the Preliminary Prospectus or the Prospectus (or other references
of
like import) shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by reference in
or
otherwise deemed by 1933 Act Regulations to be part of or included in the
Registration Statement, the Preliminary Prospectus or the Prospectus, as
the
case may be; and all references in this Agreement to amendments or supplements
to the Registration Statement, the Preliminary Prospectus or the Prospectus
shall be deemed to mean and include the filing of any document under the
Securities Exchange Act of 1934 (the “1934 Act”) which is incorporated by
reference in the Registration Statement, the Preliminary Prospectus or the
Prospectus, as the case may be.
The
Company understands that the Underwriters propose to make a public offering
of
the Securities as soon as you deem advisable after this Agreement has been
executed and delivered.
Section
1.
Representations
and Warranties
.
(a)
Representations
and Warranties of the Company
.
The
Company represents and warrants to and agrees with each of the Underwriters
as
of the Applicable Time referred to in Section 1(a) hereof and as of the Closing
Time referred to in Section 2(b) hereof, that:
(i)
Status
as a Well-Known Seasoned Issuer
.
(A) At
the time of filing the Original Registration Statement, (B) at the time the
Company or any person acting on its behalf (within the meaning, for this clause
only, of Rule 163(c) of the 1933 Act Regulations) made any offer relating
to the
Securities in reliance on the exemption of Rule 163 of the 1933 Act Regulations
and (C) at the date hereof, the Company was and is a “well-known seasoned
issuer” as defined in Rule 405 of the 1933 Act Regulations (“Rule 405”),
including not having been and not being an “ineligible issuer” as defined in
Rule 405. The Registration Statement is an “automatic shelf registration
statement,” as defined in Rule 405, and the Securities, since their registration
on the Registration Statement, have been and remain eligible for registration
by
the Company on a Rule 405 “automatic shelf registration statement”. The Company
has not received from the Commission any notice pursuant to Rule 401(g)(2)
of
the 1933 Act Regulations objecting to the use of the automatic shelf
registration statement form.
(ii)
Registration
Statement, Prospectus and Disclosure at Time of Sale.
The
Original Registration Statement became effective upon filing under Rule 462(e)
of the 1933 Act Regulations (“Rule 462(e)”) on October 2, 2006. No stop order
suspending the effectiveness of the Registration Statement has been issued
under
the 1933 Act and no proceedings for that purpose have been instituted or
are
pending or, to the knowledge of the Company, are contemplated by the Commission,
and any request on the part of the Commission for additional information
has
been complied with.
To
the
extent that any offer that is a written communication relating to the Securities
was made prior to the filing of the Original Registration Statement by the
Company or any person acting on its behalf (within the meaning, for this
paragraph only,
of
Rule
163(c) of the 1933 Act Regulations), such communication has been filed with
the
Commission in accordance with the exemption provided by Rule 163 of the 1933
Act
Regulations (“Rule 163”) and otherwise complied with the requirements of Rule
163, including without limitation the legending requirement, to qualify such
offer for the exemption from Section 5(c) of the 1933 Act provided by Rule
163.
At
the
time the Original Registration Statement became effective, at each deemed
effective date with respect to the Underwriters pursuant to Rule 430B(f)(2)
of
the 1933 Act Regulations and at the Closing Time, the Registration Statement
complied and will comply in all material respects with the requirements of
the
1933 Act and the 1933 Act Regulations and the Trust Indenture Act of 1939,
as
amended (the “1939 Act”) and the rules and regulations of the Commission under
the 1939 Act (the “1939 Act Regulations”), and did not and will not 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;
Neither
the Prospectus nor any amendments or supplements thereto issued prior to
the
Closing Time, at the time the Prospectus or any such amendment or supplement
was
issued and at the Closing Time, all considered together, included or will
include an untrue statement of a material fact or omitted or will omit to
state
a material fact necessary in order to make the statements therein, in the
light
of the circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
statements in or omissions from the Registration Statement, the Prospectus,
or
an Issuer Free Writing Prospectus made in or on behalf of or relating to
any
Underwriter, directly or through you, expressly for use in the Registration
Statement or the Prospectus.
The
Preliminary Prospectus and the Prospectus complied when so filed in all material
respects with the 1933 Act Regulations and the Preliminary Prospectus and
the
Prospectus delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
As
of the
Applicable Time, neither the Issuer General Use Free Writing Prospectus (as
defined below) issued at or prior to the Applicable Time (as defined below),
nor
the Preliminary Prospectus, all considered together (collectively, the “General
Disclosure Package”) included any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the statements therein,
in
the light of the circumstances under which they were made, not
misleading.
As
used
in this subsection and elsewhere in this Agreement:
“Applicable
Time” means 6:00 p.m. (Eastern time) on September 6, 2007 or such other time as
agreed by the Company and the Underwriters.
“Issuer
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Securities
that is required to be filed with the Commission by the Company.
“Issuer
General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced
by its being specified in Schedule B hereto.
“Statutory
Prospectus” as of any time means the prospectus relating to the Securities that
is included in the Registration Statement immediately prior to that time,
including any document incorporated by reference therein and any preliminary
or
other prospectus deemed to be a part thereof.
Each
Issuer Free Writing Prospectus, as of its issue date did not include any
information that conflicted with the information contained in the Registration
Statement or the Prospectus as of such date, including any document incorporated
by reference therein and any preliminary or other prospectus deemed to be
a part
thereof that has not been superseded or modified.
The
representations and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement, the Prospectus or any Issuer
Free Writing Prospectus made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use therein.
(iii)
Incorporated
Documents
.
The
documents incorporated or deemed to be incorporated by reference in the
Registration Statement and the Prospectus on or prior to the Closing Date,
at
the time they were filed with the Commission, complied and will comply in
all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations or the 1934 Act, and the rules and regulations of the Commission
thereunder (the “1934 Act Regulations”), as applicable, and, when read together
and with the other information in the Prospectus, (a) at the time the Original
Registration Statement became effective, (b) at the earlier of the time the
Prospectus was first used and the time of the first contract of sale of
Securities in this offering, which is the Applicable Time and (c) at the
Closing
Time, did not and will not contain 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, in the light of the circumstances under
which they were made, not misleading.
(iv)
Independent
Accountants
.
Deloitte & Touche LLP, who have reported upon the audited financial
statements, the notes related thereto and schedules included or incorporated
by
reference in the Registration Statement,
are
independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(v)
Authorization
of Agreement
.
This
Agreement has been duly authorized, executed and
delivered
by the
Company.
(vi)
Financial
Statements
.
The
consolidated financial statements included in or incorporated by reference
into
the Registration Statement, the General Disclosure Package and the Prospectus,
together with the related schedules and notes, present fairly the consolidated
financial
position
of the Company and its subsidiaries as of the dates indicated and the
consolidated results of operations and the consolidated cash flows of the
Company and its subsidiaries for the periods specified. Such financial
statements have been prepared in conformity with generally accepted accounting
principles (“GAAP”) applied on a consistent basis throughout the periods
involved. The financial statement schedules, if any, included in the
Registration Statement present fairly in accordance with GAAP the information
required to be stated therein. The selected financial data and the summary
financial information included or incorporated by reference in the General
Disclosure Package and the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the audited
consolidated financial statements included or incorporated by reference in
the
Registration Statement.
(vii)
Good
Standing of the Company
.
The
Company is a corporation duly organized and validly existing under the laws
of
the State of North Carolina with corporate power and authority under such
laws
to own, lease and operate its properties and conduct its business as described
in the General Disclosure Package and the Prospectus; and the Company is
duly
qualified to transact business as a foreign corporation and is in good standing
or validly existing, as applicable, in each other jurisdiction in which it
owns
or leases property of a nature, or transacts business of a type, that would
make
such qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse effect on
the
Company and its subsidiaries, considered as one enterprise.
(viii)
Good
Standing of Subsidiaries
.
Each of
Lowe’s Home Centers, Inc., a North Carolina corporation and Lowe’s HIW, Inc., a
Washington corporation (together, the “Significant Subsidiaries” as such term is
defined in Rule 1-02 under Regulation S-X), is a corporation duly organized,
validly existing or in good standing, as applicable, under the laws of the
jurisdiction of its incorporation with corporate power and authority under
such
laws to own, lease and operate its properties and conduct its business; and
each
Significant Subsidiary is duly qualified to transact business as a foreign
corporation and is validly existing or in good standing, as applicable, in
each
jurisdiction in which it owns or leases property of a nature, or transacts
business of a type, that would make such qualification necessary, except
to the
extent that the failure to so qualify or be in good standing would not have
a
material adverse effect on the Company and its subsidiaries, considered as
one
enterprise. All of the outstanding shares of capital stock of each Significant
Subsidiary have been duly authorized and validly issued and are fully paid
and
non-assessable and are owned by the Company, directly or through one or
more Significant Subsidiaries, free and clear of any pledge, lien, security
interest, charge, claim or encumbrance of any kind.
(ix)
Authorization
of Indenture
.
The
Indenture and any supplement thereto or board resolution or action of authorized
officers of the Company setting forth the terms of the Securities (the
Indenture, as so supplemented by the supplement, board resolutions or
action
of
authorized officers being herein referred to as the “Indenture”) has been duly
authorized by the Company, will be substantially in the form heretofore
delivered to you and, when duly executed and delivered by the Company and
the
Trustee, will constitute a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including,
without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at
law); and the Indenture conforms in all material respects to the description
thereof in the General Disclosure Package and the Prospectus.
(x)
Authorization
of Securities
.
The
Securities have been duly authorized by the Company. When executed,
authenticated, issued and delivered in the manner provided for in the Indenture
and sold and paid for as provided in this Agreement, the Securities will
constitute valid and binding obligations of the Company entitled to the benefits
of the Indenture and enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors’
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in
a
proceeding in equity or at law); and the Securities conform in all material
respects to the description thereof in the General Disclosure Package and
the
Prospectus.
(xi)
No
Material Adverse Change in Business
.
Since
the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus, except as
otherwise stated therein or contemplated thereby, there has not been
(A) any material adverse change in the financial condition, earnings or
business affairs of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business,
(B) any transaction entered into by the Company or any subsidiary, other
than in the ordinary course of business, that is material to the Company
and its
subsidiaries, considered as one enterprise, or (C) any dividend (other than
ordinary quarterly dividends declared, paid or made in the ordinary course
of
business) or distribution of any kind declared, paid or made by the Company
on
its capital stock.
(xii)
Absence
of Defaults and Conflicts
.
Neither
the Company nor any Significant Subsidiary is in default in the performance
or
observance of any obligation, agreement, covenant or condition contained
in any
contract, indenture, mortgage, loan agreement, note, lease or other agreement
or
instrument to which it is a party or by which it may be bound or to which
any of
its properties may be subject, except for such defaults that would not have
a
material adverse effect on the financial condition, earnings or business
affairs
of the Company and its subsidiaries, considered as one enterprise. The execution
and delivery of this Agreement and the Indenture by the Company, the issuance
and delivery of the Securities, the consummation by the Company of the
transactions contemplated in this Agreement, in the Prospectus and in the
Registration
Statement
and compliance by the Company with the terms of this Agreement and the
Indenture, have been duly authorized by all necessary corporate action on
the
part of the Company and do not and will not result in any violation of the
charter or by-laws of the Company or any Significant Subsidiary, and do not
and
will not conflict with, or result in a breach of any of the terms or provisions
of, or constitute a default under, or result in the creation or imposition
of
any lien, charge or encumbrance upon any property or assets of the Company
or
any Significant Subsidiary under (A) any contract, indenture, mortgage,
loan agreement, note, lease or other agreement or instrument to which the
Company or any Significant Subsidiary is a party or by which it may be bound
or
to which any of its properties may be subject or (B) any existing
applicable law, rule, regulation, judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any Significant Subsidiary or any of their respective
properties (except for, in each case, such violations, conflicts, breaches
or
defaults or liens, charges or encumbrances that would not have a material
adverse effect on the financial condition, earnings or business affairs of
the
Company and its subsidiaries, considered as one enterprise and that would
not
have a material adverse effect on the ability of the Company to perform its
obligations under this Agreement, the Indenture and the
Securities).
(xiii)
Absence
of Further Requirements
.
No
filing with, or authorization, approval, consent or license of any government,
governmental instrumentality or court, (other than under those required and
obtained under the 1933 Act, the 1939 Act and the securities or blue sky
laws of the various states), is necessary or required for the performance
by the
Company of its obligations hereunder, in connection with the offering, issuance
or sale of the Securities hereunder or the consummation of the transactions
contemplated by this Agreement, for the valid authorization, issuance, sale
and
delivery of the Securities, or for the execution, delivery or performance
of the
Indenture by the Company.
(xiv)
Absence
of Proceedings
.
Except
as disclosed in the General Disclosure Package and the Prospectus, there
is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the knowledge
of the Company, threatened against or affecting the Company or any subsidiary
of
the Company that could result in any material adverse change in the financial
condition, earnings or business affairs of the Company and its subsidiaries,
considered as one enterprise, or that could materially and adversely affect
the
properties or assets of the Company and its subsidiaries, considered as one
enterprise, or that could adversely affect the consummation of the transactions
contemplated in this Agreement; the aggregate of all pending legal or
governmental proceedings that are not described in the General Disclosure
Package and the Prospectus to which the Company or any subsidiary of the
Company
is a party or which affect any of their respective properties, including
ordinary routine litigation incidental to the business of the Company or
any
subsidiary of the Company, would not have a material adverse effect on the
financial condition, earnings or business affairs of the Company and its
subsidiaries, considered as one enterprise.
(xv)
Accuracy
of Exhibits
.
There
are no contracts or documents of a character required to be described in
the
Registration Statement, the General Disclosure Package or the Prospectus
or to
be filed as exhibits to the Registration Statement that are not described
and
filed as required.
(xvi)
Possession
of Licenses and Permits
.
The
Company and the Significant Subsidiaries each owns, possesses or has obtained
all material governmental licenses, permits, certificates, consents, orders,
approvals and other authorizations necessary to own or lease, as the case
may
be, and to operate its properties and to carry on its business as presently
conducted (other than such licenses, permits, certificates, consents, orders,
approvals and authorizations which, if neither owned, possessed nor obtained,
would not have a material adverse effect on the business of the Company and
its
subsidiaries, considered as one enterprise), and neither the Company nor
any
Significant Subsidiary has received any notice of proceedings relating to
revocation or modification of any such material licenses, permits, certificates,
consents, orders, approvals or authorizations.
(xvii)
Possession
of Intellectual Property
.
The
Company and the Significant Subsidiaries each owns or possesses, or can acquire
on reasonable terms, adequate patents, patent licenses, trademarks, service
marks and trade names necessary to carry on its business as presently conducted,
and neither the Company nor any Significant Subsidiary has received any notice
of infringement of or conflict with asserted rights of others with respect
to
any patents, patent licenses, trademarks, service marks or trade names that
in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
could materially adversely affect the financial condition, earnings or business
affairs of the Company and its subsidiaries, considered as one
enterprise.
(xviii)
Absence
of Labor Dispute
.
To the
best knowledge of the Company, no material labor problem exists with its
employees or with employees of the Significant Subsidiaries or is imminent
and
there is no existing or imminent labor disturbance by the employees of any
of
its or the Significant Subsidiaries’ principal suppliers, contractors or
customers, in each case, that could be expected to materially adversely affect
the financial condition, earnings or business affairs of the Company and
its
subsidiaries, considered as one enterprise.
(xix)
Market
Stabilization
.
The
Company has not taken and, so long as a prospectus is required to be delivered
by any Underwriter or dealer, will not take, directly or indirectly, any
action
designed to, or that might be reasonably expected to, cause or result in
stabilization or manipulation of the price of the Securities.
(xx)
Environmental
Laws
.
Except
as disclosed in the Prospectus and except as would not individually or in
the
aggregate have a material adverse effect on the financial condition, earnings
or
business affairs of the Company and its subsidiaries, considered as one
enterprise, (A) the Company and its subsidiaries are each in compliance
with all applicable Environmental Laws, (B) the Company and its
subsidiaries have all permits, authorizations and approvals required under
any
applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or threatened Environmental Claims
against the Company or any of its subsidiaries, and (D) there are
no
circumstances with respect to any property or operations of the Company or
its
subsidiaries that could reasonably be anticipated to form the basis of an
Environmental Claim against the Company or its subsidiaries.
For
purposes of this Agreement, the following terms shall have the following
meanings: “Environmental Law” means any United States (or other applicable
jurisdiction’s) federal, state, local or municipal statute, law, rule,
regulation, ordinance, code, policy or rule of common law and any judicial
or
administrative interpretation thereof including any judicial or administrative
order, consent decree or judgment, relating to the environment, health, safety
or any chemical, material or substance, exposure to which is prohibited,
limited
or regulated by any governmental authority. “Environmental Claims” means any and
all administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation, investigations
or
proceedings relating in any way to any Environmental Law.
(xxi)
Accounting
Controls and Disclosure Controls
.
The
Company maintains a system of internal accounting controls sufficient to
provide
reasonable assurance that (1) transactions are executed in accordance with
management’s general or specific authorization; (2) transactions are recorded as
necessary to permit preparation of financial statements in conformity with
GAAP
and to maintain accountability for assets; (3) access to assets is permitted
only in accordance with management’s general or specific authorization; and (4)
the recorded accountability for assets is compared with the existing assets
at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xxii)
Sarbanes
Oxley
.
The
Company is in compliance, in all material respects, with the applicable
provisions of the Sarbanes Oxley Act of 2002.
(b)
Officer’s
Certificate
.
Any
certificate signed by any officer of the Company or any of its subsidiaries
and
delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the
matters
covered thereby.
Section
2.
Sale
and Delivery to the Underwriters; Closing
.
(a)
Securities
.
On the
basis of the representations and warranties herein contained, and subject
to the
terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price to the Underwriters set forth in
Schedule B, the principal amount of Securities set forth opposite the name
of
such Underwriter in Schedule A, plus any additional principal amount of
Securities that such Underwriter may become obligated to purchase pursuant
to
Section 10 of this Agreement.
(b)
Payment
.
Payment
of the purchase price for, and delivery of, the Securities shall be made
at the
offices of Shearman & Sterling LLP, 599 Lexington Avenue,
New York, New York 10022, or at such other place as shall be
agreed upon by the Company and you, at 10:00 A.M. on the third full
business day after the date of this Agreement (unless
postponed
pursuant to Section 10), or at such other time not more than ten full
business days thereafter as you and the Company shall determine (such date
and
time of payment and delivery being herein called the “Closing Time”). Payment
shall be made to the Company by wire transfer of immediately available funds
to
an account designated by the Company, against delivery to you for the respective
accounts of the several Underwriters of the Securities to be purchased by
them.
(c)
Denominations;
Registration
.
The
Securities to be purchased by the Underwriters shall be in such denominations
and registered in such names as you may request in writing at least two full
business days before the Closing Time. The Securities will be made available
in
New York City for examination and packaging by you not later than
10:00 A.M. (Eastern time) on the business day prior to the Closing
Time.
Section
3.
Certain
Covenants of the Company
.
The
Company covenants with each Underwriter as follows:
(a)
Compliance
with Securities Regulations and Commission Requests; Payment of Filing
Fees
.
During
the period in which a prospectus relating to the Securities is required to
be
delivered by an Underwriter or would be required but for Rule 172 under the
1933
Act, the Company, subject to Section 3(b), will comply with the requirements
of
Rule 430B and will notify the Representatives immediately, and confirm the
notice in writing, (i) when any post-effective amendment to the
Registration Statement or new registration statement relating to the Securities
shall become effective, or any supplement to the Prospectus or any amended
Prospectus relating to the Securities shall have been filed, (ii) of the
receipt of any comments from the Commission relating to the Registration
Statement or the Prospectus, (iii) of any request by the Commission for any
amendment to the Registration Statement or the filing of a new registration
statement or any amendment or supplement to the Prospectus or any document
incorporated by reference therein or otherwise deemed to be a part thereof
or
for additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
such
new registration statement or of any order preventing or suspending the use
of
the Preliminary Prospectus, or of the suspension of the qualification of
the
Securities for offering or sale in any jurisdiction, or, upon becoming aware,
of
the initiation or threatening of any proceedings for any of such purposes
or of
any examination pursuant to Section 8(e) of the 1933 Act concerning the
Registration Statement and (v) if the Company becomes aware that it is the
subject of a proceeding under Section 8A of the 1933 Act in connection with
the
offering of the Securities. The Company will effect the filings required
under
Rule 424(b), in the manner and within the time period required by Rule 424(b),
and will take such steps as it deems necessary to ascertain promptly whether
the
form of prospectus transmitted for filing under Rule 424(b) was received
for
filing by the Commission and, in the event that it was not, it will promptly
file such prospectus. The
Company
will make every reasonable effort to prevent the issuance of any stop order
and,
if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
The
Company shall pay the required Commission filing fees relating to the Securities
within the time required by Rule 456(b)(1) (i) of the 1933 Act Regulations
and
otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations
(including, if applicable, by updating the “Calculation of Registration Fee”
table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment
to the Registration Statement or on the cover page of a prospectus filed
pursuant to Rule 424(b)).
(b)
Filing
of Amendments and Exchange Act Documents; Preparation of Final Term
Sheet
.
During
the period in which a prospectus relating to the Securities is required to
be
delivered by an Underwriter or would be required but for Rule 172 under the
1933
Act, the Company will give the Representatives notice of its intention to
file
or prepare any amendment to the Registration Statement or new registration
statement relating to the Securities or any amendment, supplement or revision
to
either the Preliminary Prospectus or to the Prospectus, whether pursuant
to the
1933 Act, the 1934 Act or otherwise, and the Company will furnish the
Representatives with copies of any such documents a reasonable amount of
time
prior to such proposed filing or use, as the case may be, and will not file
or
use any such document to which the Representatives or counsel for the
Underwriters shall reasonably object.
The
Company has given the Representatives notice of any filings made pursuant
to the
1934 Act or 1934 Act Regulations within 48 hours prior to the Applicable
Time;
the Company will give the Representatives notice of its intention to make
any
such filing from the Applicable Time to the Closing Time and will furnish
the
Representatives with copies of any such documents a reasonable amount of
time
prior to such proposed filing and will not file or use any such document
to
which the Representatives or counsel for the Underwriters shall reasonably
object. The Company will prepare a final term sheet (the “Final Term Sheet”)
reflecting the final terms of the Securities, in form and substance reasonably
satisfactory to the Representatives, and shall file such Final Term Sheet
as an
“issuer free writing prospectus” pursuant to Rule 433 prior to the close of
business two business days after the date hereof; provided that the Company
shall furnish the Representatives with copies of any such Final Term Sheet
a
reasonable amount of time prior to such proposed filing and will not use
or file
any such document to which the Representatives or counsel to the Underwriters
shall reasonably object.
(c)
Continued
Compliance with Securities Laws
.
The
Company will comply to the best of its ability with the 1933 Act and the
1933
Act Regulations, the 1934 Act and the 1934 Act Regulations, and the 1939
Act and
the 1939 Act Regulations so as to permit the completion of the distribution
of
the Securities as contemplated in this Agreement and the Prospectus. If at
any
time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities by any Underwriter or dealer, any
event
shall occur or condition exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters or counsel for the Company, to amend
the
Registration Statement or amend or supplement the General Disclosure Package
or
the Prospectus in order that the General Disclosure Package and the Prospectus
will not include an untrue statement of a material fact or omit to state
a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to
a
purchaser, or if it shall be necessary, in the opinion of either such counsel,
at any such time to amend the Registration Statement or to file a new
registration statement or amend or supplement the General Disclosure Package
or
the Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment, supplement or new
registration statement as may be necessary to correct such untrue statement
or
omission or to comply with such requirements. The Company will use its best
efforts to have such amendment or new registration statement declared effective
as soon as practicable (if it is not an automatic shelf registration statement
with respect to the Securities) and the Company will furnish to the Underwriters
such number of copies of such amendment, supplement or new registration
statement as the Underwriters may reasonably request. During the period in
which
a prospectus relating to the Securities is required to be
delivered
by an Underwriter or would be required but for Rule 172 under the 1933 Act,
if
at any time following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which such Issuer
Free
Writing Prospectus conflicted or would conflict with the information contained
or incorporated by reference in the Registration Statement (or any other
registration statement relating to the Securities) or the Statutory Prospectus
included or would include an untrue statement of a material fact or omitted
or
would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances prevailing at that subsequent
time,
not misleading, the Company will promptly notify the Representatives and
will
promptly amend or supplement, at its own expense, such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement or
omission.
(d)
Delivery
of the Registration Statement
.
The
Company has furnished or will furnish to you, without charge, as many signed
copies of the Original Registration Statement and of all amendments thereto,
copies of all exhibits and documents filed therewith or incorporated by
reference therein or otherwise deemed to be a part thereof (other than documents
required to be filed under the 1934 Act that upon filing are deemed to be
incorporated by reference therein and through the end of the period when
a
prospectus is required by the 1933 Act to be delivered in connection with
sales of the Securities) and signed copies of all consents and certificates
of
experts, as you may reasonably request, and has furnished or will furnish
to
you, for each of the Underwriters, one conformed copy of the Original
Registration Statement and of each amendment thereto (including documents
incorporated by reference into the Prospectus but without exhibits, other
than
documents required to be filed under the 1934 Act that upon filing are deemed
to
be incorporated by reference therein). The copies of the Original Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(e)
Delivery
of Prospectuses
.
The
Company has delivered to each Underwriter, without charge, an electronic
copy of
the Preliminary Prospectus, and the Company hereby consents to the distribution
of such Preliminary Prospectus to prospective investors. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act, such number of
copies
of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(f)
Blue
Sky Qualifications
.
The
Company will use its best efforts, in cooperation with the Underwriters,
to
qualify the Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions as you may designate and will
maintain such qualifications in effect for a period of not less than one
year
from the date hereof;
provided
,
however
,
that
the Company shall not be obligated to file any general consent to service
of
process or to qualify as a foreign corporation or as a dealer in securities
in
any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not
otherwise so subject. The Company will file such statements and reports as
may
be required by the laws of each jurisdiction in which the Securities have
been
qualified
as above to continue such qualification in effect for a period of not less
than
one year from the date hereof. The Company will also supply you with such
information as is necessary for the determination of the legality of the
Securities for investment under the laws of such jurisdictions as you may
request.
(g)
Rule
158
.
The
Company will timely file such reports pursuant to the 1934 Act as are necessary
in order to make generally available to its security holders as soon as
practicable an earnings statement for the purposes of, and to provide to
the
Underwriters the benefits contemplated by, the last paragraph of Section
11(a)
of the 1933 Act.
(h)
Rating
of Securities
.
The
Company shall take all reasonable action necessary to enable Moody’s Investors
Service, Inc. (“Moody’s”), Standard & Poor’s Ratings Services, a Division of
The McGraw-Hill Companies, Inc. (“S&P”) and Fitch, Inc. (“Fitch”) to provide
their respective credit ratings of the Securities issued by the
Company.
(i)
Use
of Proceeds
.
The
Company will use the net proceeds received by it from the sale of the Securities
in the manner specified in the Prospectus under the caption “Use of
Proceeds.”
(j)
Issuer
Free Writing Prospectuses
.
The
Company represents and agrees that, unless it obtains the prior consent of
the
Representatives, and each Underwriter represents and agrees that, unless
it
obtains the prior consent of the Company and the Representatives, it has
not
made and will not make any offer relating to the Securities that would
constitute an “issuer free writing prospectus,” as defined in Rule 433, or that
would otherwise constitute a “free writing prospectus,” as defined in Rule 405,
required to be filed with the Commission; provided, however, that prior to
the
preparation of the Final Term Sheet in accordance with Section 3(b), the
Underwriters are authorized to use information with respect to the final
terms
of the Securities in communications conveying information relating to the
offering to prospective investors. Any such free writing prospectus consented
to
by the Company and the Representatives is hereinafter referred to as a
“Permitted Free Writing Prospectus.” The Company represents that it has treated
or agrees that it will treat each Permitted Free Writing Prospectus as an
“issuer free writing prospectus,” as defined in Rule 433, and has complied and
will comply with the requirements of Rule 433 applicable to any Permitted
Free
Writing Prospectus, including timely filing with the Commission where required,
legending and record keeping.
Section
4.
Payment
of Expenses
.
(a)
Expenses
.
The
Company will pay and bear all costs and expenses incident to the performance
of
its obligations under this Agreement, including (i) the preparation,
printing and filing of the Registration Statement (including financial
statements and any schedules or exhibits and any documents incorporated therein
by reference), as originally filed and as amended, the General Disclosure
Package and the Prospectus and any amendments or supplements thereto, and
the
cost of furnishing copies thereof in accordance with Section 3 of this Agreement
thereto to the Underwriters, (ii) the preparation, printing and
distribution of this Agreement, the Indenture, the Securities, the Blue Sky
Survey and the Legal Investment Survey, (iii) the delivery of the
Securities to the Underwriters, (iv) the fees and disbursements of the
Company’s
counsel and accountants, (v) the qualification of the Securities under the
applicable securities laws in accordance with Section 3(f) and any filing
for review of the offering with the Financial Industry Regulatory Authority,
including filing fees and fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the Blue Sky Survey and the
Legal
Investment Survey, (vi) any fees charged by rating agencies for rating the
Securities and (vii) the fees and expenses of the Trustee, including the
fees
and disbursements of counsel for the Trustee, in connection with the Indenture
and the Securities.
(b)
Termination
of Agreement
.
If this
Agreement is terminated by you in accordance with the provisions of
Section 5 or Section 9(a)(i) the Company shall reimburse the Underwriters
for all their out-of-pocket expenses, including the fees and disbursements
of
counsel for the Underwriters.
Section
5.
Conditions
of Underwriters’ Obligations
.
The
obligations of the several Underwriters to purchase and pay for the Securities
that they have respectively agreed to purchase pursuant to this Agreement
are
subject to the accuracy of the representations and warranties of the Company
contained herein or in certificates of any officer of the Company or any
Significant Subsidiary delivered pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder, and to the following
further conditions:
(a)
Effectiveness
of Registration Statement;Filing of Prospectus; Payment of Filing
Fee
.
The
Registration Statement has become effective and at the Closing Time no stop
order suspending the effectiveness of the Registration Statement shall have
been
issued under the 1933 Act and no proceedings for that purpose shall have
been instituted or shall be pending or, to your knowledge or the knowledge
of
the Company, shall be contemplated by the Commission, and any request on
the
part of the Commission for additional information shall have been complied
with
to the satisfaction of counsel for the Underwriters. A prospectus containing
the
Rule 430B Information shall have been filed with the Commission in the manner
and within the time period required by Rule 424(b)(or a post-effective amendment
providing such information shall have been filed and become effective in
accordance with the requirements of Rule 430B). The Company shall have paid
the
required Commission filling fees relating to the Securities within the time
period required by Rule 456(1)(i) of the 1933 Act Regulations and otherwise
in
accordance with Rules 456(b) and 457(r) or the 1933 Act Regulations and,
if
applicable, shall have updated the “Calculation of Registration Fee” table in
accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to
the
Registration Statement or on the cover page of a prospectus filed pursuant
to
Rule 424(b).
(b)
Opinions
of Moore & Van Allen PLLC, Counsel for the Company
.
At the
Closing Time, you shall have received signed opinions of Moore & Van Allen
PLLC, counsel for the Company, dated as of the Closing Time, together with
signed or reproduced copies of such opinions for each of the other Underwriters,
in form and substance satisfactory to counsel for the Underwriters, to the
effect that:
(i)
The
Company is a corporation duly incorporated and validly existing under the
laws
of the State of North Carolina, with corporate power and authority under
such
laws to own, lease and operate its properties and conduct its business as
described in the Prospectus.
(ii)
Each
Significant Subsidiary is a corporation duly incorporated, validly existing
or
in good standing, as applicable, under the laws of the jurisdiction of its
incorporation with corporate power and authority under such laws to own,
lease
and operate its properties and conduct its business.
(iii)
All
of
the outstanding shares of capital stock of each Significant Subsidiary have
been
duly authorized and validly issued and are fully paid and non-assessable;
all of
such shares are owned directly by the Company, free and clear of any perfected
security interest and, any unperfected pledge, lien, security interest, charge,
claim, equity or encumbrance of any kind known to such counsel; no holder
thereof is subject to personal liability by reason of being such a holder
and
none of such shares was issued in violation of the preemptive rights of any
stockholder of the Significant Subsidiaries.
(iv)
The
Indenture has been duly authorized, executed and delivered by the Company
and,
assuming due authorization, execution and delivery by the Trustee, constitutes
a
valid and binding obligation of the Company, enforceable against the Company
in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating
to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors’ rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement
is
considered in a proceeding in equity or at law) and except to the extent
that
enforcement thereof is contrary to public policy regarding the exculpation
of
criminal violations, intentional harm, acts of gross negligence or recklessness
or violations of securities laws and regulations.
(v)
The
Securities have been duly authorized by the Company and, assuming that the
Securities have been duly authenticated by the Trustee in the manner described
in its certificate delivered to you at the Closing Time (which fact such
counsel
need not determine by an inspection of the Securities), the Securities have
been
duly executed, issued and delivered by the Company and constitute valid and
binding obligations of the Company entitled to the benefits of the Indenture
and
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including,
without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at
law) and except to the extent that enforcement thereof is contrary to public
policy regarding the exculpation of criminal violations, intentional harm,
acts
of gross negligence or recklessness or violations of securities laws and
regulations.
(vi)
There
are
no statutes or regulations, or any pending or threatened legal or governmental
proceedings known to such counsel that are required to be described in the
General Disclosure Package or
the
Prospectus that are not described as required, or of any material contracts
or
documents of a character required to be described or referred to in the
Registration Statement, the General Disclosure Package or the Prospectus
or to
be filed as exhibits to the Registration Statement that are not described,
referred to or filed as required.
(vii)
No
default, known to such counsel, exists in the performance or observance of
any
material obligation, agreement, covenant or condition contained in any contract,
indenture, loan agreement, note, lease or other agreement or instrument that
is
described or referred to in the Registration Statement, the Prospectus or
the
General Disclosure Package or filed as an exhibit to the Registration
Statement.
(viii)
The
execution and delivery of this Agreement and the Indenture by the Company,
the
issuance and delivery of the Securities, the consummation by the Company
of the
transactions contemplated in this Agreement, in the Indenture, in the General
Disclosure Package, in the Prospectus and in the Registration Statement,
and the
compliance by the Company with the terms of this Agreement and the Indenture
do
not and will not result in any violation of the charter or by-laws of the
Company or any Significant Subsidiary, and do not and will not conflict with,
or
result in a breach of, any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge
or
encumbrance upon any property or assets of the Company or any Significant
Subsidiary under (A) any contract, indenture, mortgage, loan agreement, note,
lease or any other agreement or instrument known to such counsel, to which
the
Company or any Significant Subsidiary is a party or by which it may be bound
or
to which any of its properties may be subject, (B) any existing applicable
law,
rule or regulation (other than the securities or blue sky laws of the various
states, as to which such counsel need express no opinion), or (C) any judgment,
order or decree of any government, governmental instrumentality or court,
known
to such counsel, having jurisdiction over the Company or any Significant
Subsidiary or any of their respective properties, in each case excepting
such
conflicts, breaches or defaults or liens, charges or encumbrances that would
not
have a material adverse effect on the business, operations, property or
financial condition of the Company and its subsidiaries, considered as one
enterprise and that would not have a material adverse effect on the ability
of
the Company to perform its obligations under the Agreement, the Indenture
or the
Securities.
(ix)
The
descriptions in the Prospectus of the statutes, regulations, legal or
governmental proceedings, contracts or other documents therein described
are
accurate and fairly summarize the information required to be shown in all
material respects.
(x)
This
Agreement has been duly authorized, executed and delivered by the
Company.
(xi)
The
Indenture has been duly qualified under the 1939 Act.
(xii)
The
Securities and the Indenture conform in all material respects as to legal
matters to the descriptions thereof in the General Disclosure Package and
the
Prospectus.
(xiii)
No
authorization, approval, consent or license of any government, governmental
instrumentality or court (other than those required and obtained under the
1933
Act,
the 1939 Act and the securities or blue sky laws of the various states),
is
required for the valid authorization, issuance, sale and delivery of the
Securities or for the execution, delivery or performance of the Indenture
by the
Company.
(xiv)
The
Original Registration Statement became effective under the 1933 Act on October
2, 2006; the required filing of the Prospectus pursuant to Rule 424(b) has
been
made in the manner and within the time period required by Rule 424(b); and,
no
stop order suspending the effectiveness of the Registration Statement, known
to
such counsel, has been issued and no proceedings for that purpose, known
to such
counsel, have been instituted or are pending or are contemplated under the
1933
Act.
(xv)
The
Registration Statement and the Prospectus, excluding the documents incorporated
by reference therein, and each amendment or supplement thereto (except for
the
financial statements and other financial or statistical data included therein
or
omitted therefrom, as to which such counsel need express no opinion), as
of
their respective effective or issue dates, appear on their face to have been
appropriately responsive in all material respects to the requirements of
the
1933 Act and the 1933 Act Regulations, and the Indenture on its face to have
been appropriately responsive in all material respects to the requirements
of
the 1939 Act and the 1939 Act Regulations.
(xvi)
The
documents incorporated by reference in the General Disclosure Package and
the
Prospectus (except for the financial statements and other financial or
statistical data in tabular format included therein or omitted therefrom,
as to
which such counsel need express no opinion, and except to the extent that
any
statement therein is modified or superseded in the General Disclosure Package
and the Prospectus), as of the dates they were filed with the Commission,
appear
on their face to have been appropriately responsive in all material respects
to
the requirements of the 1934 Act and the 1934 Act Regulations.
(xvii)
Such
counsel have participated in the preparation of the Registration Statement,
the
General Disclosure Package and the Prospectus and are familiar with or have
participated in the preparation of the documents incorporated by reference
in
the General Disclosure Package and the Prospectus and no facts have come
to the
attention of such counsel to lead them to believe that (A) the Registration
Statement (except for the financial statements and other financial information
and statistical data in tabular format included or incorporated by reference
therein or omitted therefrom and the Statement of Eligibility of the Trustee
on
Form T-1 filed in connection with such Registration Statement, as to which
such
counsel need express no opinion), at the time the Original Registration
Statement became effective, at each deemed effective date with respect to
the
Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations prior
to or
at the Closing Time, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary
to
make the statements therein not misleading, (B)(i) the Prospectus or any
amendment or supplement thereto (except for the financial statements and
other
financial information and statistical data in tabular format included or
incorporated by reference therein or omitted therefrom, as to which such
counsel
need express no opinion), as of the date of the Prospectus and as of the
Closing
Time or (ii) the General Disclosure Package, as of the Applicable Time, included
or
include an untrue statement of a material fact or omitted 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, or (C) the
documents incorporated by reference in the General Disclosure Package and
the
Prospectus (except for the financial statements and other financial information
and statistical data in tabular format included therein or omitted therefrom,
as
to which such counsel need express no opinion, and except to the extent that
any
statement therein is modified or superseded in the General Disclosure Package
and the Prospectus), as of the dates they were filed with the Commission,
included 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,
in the light of the circumstances under which they were made, not
misleading.
Such
opinion shall be to such further effect with respect to other legal matters
relating to this Agreement and the sale of the Securities pursuant to this
Agreement as counsel for the Underwriters may reasonably request. In giving
such
opinion, such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the States of New York and North Carolina
and the federal law of the United States, upon opinions of other counsel,
who
shall be counsel satisfactory to counsel for the Underwriters, in which case
the
opinion shall state that they believe you and they are entitled to so rely.
Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and the Significant Subsidiaries and certificates of public
officials.
(c)
Opinion
of Counsel to the Underwriters
.
At the
Closing Time, you shall have received the favorable opinion of Shearman &
Sterling LLP, counsel for the Underwriters, dated as of the Closing Time,
together with signed or reproduced copies of such opinion for each of the
other
Underwriters, to the effect that the opinion delivered pursuant to
Sections 5(b) hereof appear on its face to be appropriately responsive to
the requirements of this Agreement except, specifying the same, to the extent
waived by you, and with respect to the incorporation and legal existence
of the
Company, the Securities, this Agreement, the Indenture, the Registration
Statement, the Prospectus, the documents incorporated by reference and such
other related matters as you may require. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other than
the
law of the State of New York and the federal law of the United States, upon
the opinions of counsel satisfactory to you. Such counsel may also state
that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and
the
Significant Subsidiaries and certificates of public officials;
provided
that
such certificates have been delivered to the Underwriters.
(d)
Officers’
Certificate
.
At the
Closing Time, (i) the Registration Statement, the General Disclosure
Package and the Prospectus, as they may then be amended or supplemented,
shall
contain all statements that are required to be stated therein under the
1933 Act and the 1933 Act Regulations and in all material respects
shall conform to the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the 1939 Act Regulations, and neither the
Registration Statement, the General Disclosure Package nor the Prospectus,
as
they may then be amended or supplemented, shall 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,
(ii) since the time of execution of this Agreement or since the respective
dates as of which information is given in the Prospectus or the General
Disclosure Package, there shall not have been any material adverse change
in the
financial condition, earnings or business affairs of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, (iii) no action, suit or proceeding shall be
pending or, to the knowledge of the Company, threatened against the Company
or
any subsidiary of the Company that would be required to be set forth in the
General Disclosure Package and the Prospectus other than as set forth therein
and no proceedings shall be pending or, to the knowledge of the Company,
threatened against the Company or any subsidiary of the Company before or
by any
government, governmental instrumentality or court, domestic or foreign, that
could result in any material adverse change in the financial condition, earnings
or business affairs of the Company and its subsidiaries, considered as one
enterprise, other than as set forth in the General Disclosure Package and
the
Prospectus, (iv) the Company shall have complied with all agreements and
satisfied all conditions on its part to be performed or satisfied relating
to
the transactions contemplated by this Agreement, the Indenture, the Registration
Statement, the General Disclosure Package and the Prospectus at or prior
to the
Closing Time and (v) the other representations and warranties of the
Company set forth in Section 1(a) shall be accurate as though expressly
made at and as of the Closing Time. At the Closing Time, you shall have received
a certificate of the Chief Executive Officer or an Executive Vice President,
and
the Treasurer or Assistant Treasurer or Controller, of the Company, dated
as of
the Closing Time, to such effect.
(e)
Accountants'
Comfort Letter
.
At the
date of this Agreement, you shall receive from Deloitte & Touche LLP a
letter, dated as of the date of this Agreement, in form and substance
satisfactory to you, together with signed or reproduced copies of such letter
for each of the other Underwriters, containing statements and information
of the
type ordinarily included in accountants’ “comfort letters” to underwriters with
respect to the financial statements and certain financial information
incorporated by reference in the Registration Statement, the General Disclosure
Package and the Prospectus and the specified date referred to therein shall
be a
date not more than three days prior to the date of this Agreement.
(f)
Bring-down
Comfort Letter.
At the
Closing Time, you shall have received from Deloitte & Touche LLP a letter,
dated as of the Closing Time, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (e) of this Section,
except
that the specified date referred to shall be a date not more than two business
days prior to the Closing Time.
(g)
Rating
Agencies
.
Subsequent to the execution and delivery of this Agreement and prior to the
Closing Time, there shall not have been any downgrading, nor any notice given
of
any intended or potential downgrading or of a possible change that does not
indicate the direction of the possible change, in the rating accorded any
of the
Company’s securities, including the Securities, by any “nationally recognized
statistical
rating organization,” as such term is defined for purposes of Rule 436(g)(2)
under the 1933 Act.
(h)
Additional
Documents.
At the
Closing Time, counsel for the Underwriters shall have been furnished with
all
such documents, certificates and opinions as they may reasonably request
for the
purpose of enabling them to pass upon the issuance and sale of the Securities
as
contemplated in this Agreement and the matters referred to in Section 5(c)
and in order to evidence the accuracy and completeness of any of the
representations, warranties or statements of the Company, the performance
of any
of the covenants of the Company, or the fulfillment of any of the conditions
herein contained; and all proceedings taken by the Company at or prior to
the
Closing Time in connection with the authorization, issuance and sale of the
Securities as contemplated in this Agreement shall be satisfactory in form
and
substance to you and to counsel for the Underwriters.
(i)
Termination
of Agreement
.
If any
of the conditions specified in this Section 5 shall not have been fulfilled
when and as required by this Agreement, this Agreement may be terminated
by you
on notice to the Company at any time at or prior to the Closing Time, and
such
termination shall be without liability of any party to any other party, except
as provided in Section 4. Notwithstanding any such termination, the provisions
of Sections 6, 7 and 8 shall remain in effect.
Section
6.
Indemnification
.
(a)
Indemnification
of the Underwriters
.
The
Company agrees to indemnify and hold harmless each Underwriter and each person,
if any, who controls such Underwriter within the meaning of Section 15 of
the
1933 Act or Section 20 of the 1934 Act as follows:
(i)
against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, including the Rule 430B
Information, or the omission or alleged omission therefrom of a material
fact
required to be stated therein or necessary to make the statements therein
not
misleading, or arising out of an untrue statement or alleged untrue statement
of
a material fact contained in any Issuer Free Writing Prospectus, the Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto), or
the
omission or alleged omission therefrom of a material fact necessary in order
to
make the statements therein, in the light of the circumstances under which
they
were made, not misleading;
(ii)
against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation,
or
any investigation or proceeding by any governmental agency or body, commenced
or
threatened, or any claim whatsoever based upon any such untrue statement
or
omission, or any such alleged untrue statement or omission,
provided
that
(subject to Section 6(d) hereof) any such settlement is effected with the
written consent of the Company; and
(iii)
against
any and all expense whatsoever, as incurred (including the
fees
and
disbursements of counsel chosen by you), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any
claim whatsoever based upon any such untrue statement or omission, or any
such
alleged untrue statement or omission, to the extent that any such expense
is not
paid under subparagraph (i) or (ii) above;
provided
,
however
,
that
this indemnity agreement does not apply to any loss, liability, claim, damage
or
expense to the extent arising out of an untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by and relating to any Underwriter
through the Representatives expressly for use in the Registration Statement
(or
any amendment thereto), including the Rule 430B Information, the Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto).
(b)
Indemnification
of the Company, Directors and Officers
.
Each
Underwriter severally agrees to indemnify and hold harmless the Company,
its
directors, each of its officers who signed the Registration Statement and
each
person, if any, who controls the Company within the meaning of Section 15
of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity agreement contained
in
Section 6(a) hereof, as incurred, but only with respect to untrue statements
or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (including any amendment thereto), including the Rule 430B
Information, any Issuer Free Writing Prospectus, the Preliminary Prospectus
or
the Prospectus (or any amendment or supplement thereto) in reliance upon
and in
conformity with information furnished in writing to the Company by and relating
to such Underwriter through you expressly for use therein.
(c)
Actions
Against Parties; Notification
.
Each
indemnified party shall give notice as promptly as reasonably practicable
to
each indemnifying party of any action commenced against it in respect of
which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder
to
the extent it is not materially prejudiced as a result thereof and in any
event
shall not relieve it from any liability which it may have otherwise than
on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 6(a) hereof, counsel to the indemnified parties shall be selected
by
Merrill Lynch and, in the case of parties indemnified pursuant to Section
6(b)
hereof, counsel to the indemnified parties shall be selected by the Company.
An
indemnifying party may participate at its own expense in the defense of any
such
action;
provided
,
however
,
that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event
shall
the indemnifying parties be liable for the fees and expenses of more than
one
counsel (in addition to any local counsel) separate from their own counsel
for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances.
No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any
litigation,
or any investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever in respect of which indemnification
or
contribution could be sought under this Section 6 or Section 7 hereof (whether
or not the indemnified parties are actual or potential parties thereto),
unless
such settlement, compromise or consent (i) includes an unconditional release
of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement
as to
or an admission of fault, culpability or a failure to act by or on behalf
of any
indemnified party.
(d)
Settlement
Without Consent if Failure to Reimburse
.
If at
any time an indemnified party shall have requested an indemnifying party
to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) hereof effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least
30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with
such
request prior to the date of such settlement. The indemnified party shall
promptly reimburse the indemnifying party for all amounts advanced to it
pursuant to this Section 6(d) hereof (unless it is entitled to such amounts
under Section 7 hereof) if it shall be finally judicially determined that
such
indemnified party was not entitled to indemnification hereunder and such
loss,
liability, claim, damage or expense arose out of (i) an untrue statement
or
omission or alleged untrue statement or omission made in reliance upon and
in
conformity with written information furnished to the Company by and relating
to
the indemnified party expressly for use in the Registration Statement (or
any
amendment thereto), including the Rule 430B Information or any Issuer Free
Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) or (ii) a fraudulent misrepresentation (within
the meaning of Section 11 of the 1933 Act) by the indemnified
party.
SECTION
7.
Contribution
If
the
indemnification provided for in Section 6 hereof is for any reason held to
be
unavailable or insufficient to hold harmless an indemnified party in respect
of
any losses, liabilities, claims, damages or expenses referred to therein,
then
each indemnifying party shall contribute to the aggregate losses, liabilities,
claims, damages and expenses incurred by such indemnified party, as incurred,
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Underwriters, on the other
hand, from the offering of the Securities pursuant to this Agreement or (ii)
if
the allocation provided by clause (i) is not permitted by applicable law,
in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company,
on
the one hand, and of the Underwriters, on the other hand, in connection with
the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, 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 hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses)
received
by the Company and the total underwriting discount received by the Underwriters,
in each case as set forth on the cover of the Prospectus bear to the aggregate
initial public offering price of the Securities as set forth on such
cover.
The
relative fault of the Company, on the one hand, and the Underwriters, on
the
other hand, shall be determined by reference to, among other things, 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 by the Underwriters and the parties’ relative intent, 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
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or
by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 7. The aggregate amount
of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7 shall be deemed to include
any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue
statement or omission or alleged omission.
Notwithstanding
the provisions of this Section 7, 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 were offered
to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of any such untrue or alleged untrue statement
or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For
purposes of this Section 7, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act
shall have the same rights to contribution as such Underwriter, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the
same
rights to contribution as the Company. The Underwriters’ respective obligations
to contribute pursuant to this Section 7 are several in proportion to the
aggregate principal amount of Securities set forth opposite their respective
names in Schedule A hereto and not joint.
Section
8.
Representations,
Warranties and Agreements to Survive Delivery
.
All
representations, warranties, indemnities, agreements and other statements
of the
Company or its officers set forth in or made pursuant to this Agreement will
remain operative and in full force and effect regardless of any investigation
made by or on behalf of the Company, any Underwriter or any person who controls
the Company or any Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act and will survive delivery of and
payment for the Securities.
Section
9.
Termination
of Agreement
.
(a)
Termination
Generally
.
You may
terminate this Agreement, by notice to the Company, at any time at or prior
to
the Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given
in the
Prospectus or the General Disclosure Package, any material adverse change
in the
financial condition, earnings or business affairs of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material
adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving
a
prospective change in national or international political, financial or economic
conditions, in each case the effect is such as to make it, in your judgment,
impracticable to market the Securities or enforce contracts for the sale
of the
Securities or (iii) if trading in any securities of the Company has been
suspended by the Commission or the Financial Industry Regulatory Authority
or if
trading generally on either the American Stock Exchange or the New York Stock
Exchange or in the over-the-counter market has been suspended, or minimum
or
maximum prices for trading have been fixed, or maximum ranges for prices
for
securities have been required, by any of such exchanges or such system or
by
order of the Commission, the Financial Industry Regulatory Authority or any
other governmental authority, (iv) a material disruption has occurred in
commercial banking or securities settlement or clearance services in the
United
States or (v) if a banking moratorium has been declared by either federal,
New York or North Carolina authorities. As used in this Section 9(a), the
term
“Prospectus” means the Prospectus in the form first used to confirm sales of the
Securities.
(b)
Liabilities
.
If this
Agreement is terminated pursuant to this Section, such termination shall
be
without liability of any party to any other party, except to the extent provided
in Section 4. Notwithstanding any such termination, the provisions of
Sections 6, 7 and 8 shall survive such termination and remain in full force
and effect.
Section
10.
Default
by One or More of the Underwriters
.
If one
or more of the Underwriters shall fail at the Closing Time to purchase the
Securities that it or they are obligated to purchase pursuant to this Agreement
(the “Defaulted Securities”), you shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than
all,
of the Defaulted Securities in such amounts as may be agreed upon and upon
the
terms set forth in this Agreement; if, however, the non-defaulting Underwriters
have not completed such arrangements within such 24-hour period,
then:
(a)
if
the
aggregate principal amount of Defaulted Securities does not exceed 10% of
the
aggregate principal amount of the Securities to be purchased pursuant to
this
Agreement, each non-defaulting Underwriter shall be obligated, each severally
and not jointly, to purchase the full amount thereof in the proportions that
their respective Securities underwriting obligation proportions bear to the
underwriting obligations of all non-defaulting Underwriters; or
(b)
if
the
aggregate principal amount of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Securities to be purchased pursuant to this
Agreement,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No
action
taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In
the
event of any such default that does not result in a termination of this
Agreement, either the non-defaulting Underwriters or the Company shall have
the
right to postpone the Closing Time for a period not exceeding seven days
in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
“Underwriter” includes any person substituted for a Underwriter under this
Section 10.
Section
11.
Notices
.
All
notices and other communications under this Agreement shall be in writing
and
shall be deemed to have been duly given if delivered, mailed or transmitted
by
any standard form of telecommunication. Notices to the Underwriters and the
Company shall be directed to the addresses specified below.
To
the
Company:
Lowe’s
Companies, Inc.
1000
Lowe’s Boulevard
Mooresville,
North Carolina 28117
Attention:
Gaither M. Keener, Jr.
Telecopy
No.: (704) 758-1000
To
the
Underwriters:
c/o:
Merrill
Lynch, Pierce, Fenner & Smith
Incorporated
World
Financial Center
4
World
Financial Center
New
York,
New York 10080
Attention:
Office of General Counsel
Telecopy
No.: (212) 449-3207
and
J.P.
Morgan Securities Inc.
270
Park
Avenue - 8
th
Floor
New
York,
New York 10017
Attention:
Investment Grade Syndicate Desk
Telecopy
No. (212) 834-6081
and
Wachovia
Capital Markets, LLC
One
Wachovia Center
301
South
College Street
Charlotte,
North Carolina 28288
Attention:
Head of Investment Grade Syndicate
Telecopy
No.: (704) 383-0661
Section
12.
Parties
.
This
Agreement herein set forth is made solely for the benefit of the several
Underwriters, the Company and, to the extent expressed, any person who controls
the Company or any of the Underwriters within the meaning of Section 15 of
the 1933 Act, and the directors of the Company, its officers who have
signed the Registration Statement, and their respective executors,
administrators, successors and assigns and, subject to the provisions of
Section 10, no other person shall acquire or have any right under or by
virtue of this Agreement. The term “successors and assigns” shall not include
any purchaser, as such purchaser, from any of the several Underwriters of
the
Securities. All of the obligations of the Underwriters hereunder are several
and
not joint.
Section
13.
No
Advisory or Fiduciary Relationship
.
The
Company acknowledges and agrees that (a) the purchase and sale of the Securities
pursuant to this Agreement, including the determination of the public offering
price of the Securities and any related discounts and commissions, is an
arm’s-length commercial transaction between the Company, on the one hand, and
the several Underwriters, on the other hand, (b) in connection with the offering
contemplated hereby and the process leading to such transaction each Underwriter
is and has been acting solely as a principal and is not the agent or fiduciary
of the Company, or its stockholders, creditors, employees or any other party,
(c) no Underwriter has assumed or will assume an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter
has advised or is currently advising the Company on other matters) and no
Underwriter has any obligation to the Company with respect to the offering
contemplated hereby except the obligations expressly set forth in this
Agreement, (d) the Underwriters and their respective affiliates may be engaged
in a broad range of transactions that involve interests that differ from
those
of the Company, and (e) the Underwriters have not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated
hereby and the Company has consulted its own legal, accounting, regulatory
and
tax advisors to the extent it deemed appropriate.
Section
14.
Integration
.
This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) between the Company and the Underwriters, or any of them, with respect
to
the subject matter hereof.
Section
15.
Representation
of Underwriters
.
The
Representatives will act for the several Underwriters in connection with
the
transactions contemplated by this Agreement, and any action under or in respect
of this Agreement taken by the Representatives will be binding upon all
Underwriters.
Section
17.
Governing
Law and Time
.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York. Unless otherwise indicated, specified times of the day
refer to New York City time.
Section
18.
Effect
of Headings
.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section
19.
Counterparts
.
This
Agreement may be executed in one or more counterparts, and when a counterpart
has been executed by each party, all such counterparts taken together shall
constitute one and the same agreement.
______________________________
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to us a counterpart hereof, whereupon this instrument, along with
all
counterparts, will become a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very
truly yours,
LOWE’S
COMPANIES, INC.
By:
/s/ James
A. Cook
III
Name: James
Cook
Title:
V.P. & Treasurer
CONFIRMED
AND ACCEPTED
as
of the
date first above written:
MERRILL
LYNCH & CO.
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
J.P.
MORGAN SECURITIES INC.
WACHOVIA
CAPITAL MARKETS, LLC
By:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By:
/s/
Blake
Hallinan
Name:
Blake Hallinan
Title:
Vice President
By:
J.P.
Morgan Securities Inc.
By:
/s/
Robert
Bottamedi
Name:
Robert Bottamedi
Title:
Vice President
By:
Wachovia Capital Markets, LLC
By:
/s/ Erik
Wallace
Name:
Erik Wallace
Title:
Vice President
SCHEDULE
A
Underwriter
|
Principal
amount of 2012 Notes
|
J.P.
Morgan Securities Inc.
|
$120,076,000
|
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
|
$120,076,000
|
Wachovia
Capital Markets, LLC
|
$120,076,000
|
Banc
of America Securities LLC
|
$33,022,000
|
U.S.
Bancorp Investments, Inc.
|
$33,000,000
|
SunTrust
Robinson Humphrey, Inc.
|
$33,000,000
|
Barclays
Capital Inc.
|
$8,250,000
|
BB&T
Capital Markets, a division of Scott & Stringfellow,
Inc.
|
$8,250,000
|
BMO
Capital Markets Corp.
|
$8,250,000
|
BNP
Paribas Securities Corp.
|
$8,250,000
|
BNY
Capital Markets, Inc.
|
$8,250,000
|
Fifth
Third Securities, Inc.
|
$8,250,000
|
HSBC
Securities (USA) Inc.
|
$8,250,000
|
Morgan
Keegan & Company, Inc.
|
$8,250,000
|
NatCity
Investments, Inc.
|
$8,250,000
|
Wedbush
Morgan Securities Inc.
|
$8,250,000
|
Wells
Fargo Securities, LLC
|
$8,250,000
|
|
|
Total
|
$550,000,000
|
Underwriter
|
Principal
amount of 2017 Notes
|
J.P.
Morgan Securities Inc.
|
$54,580,000
|
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
|
$54,580,000
|
Wachovia
Capital Markets, LLC
|
$54,580,000
|
Banc
of America Securities LLC
|
$15,010,000
|
U.S.
Bancorp Investments, Inc.
|
$15,000,000
|
SunTrust
Robinson Humphrey, Inc.
|
$15,000,000
|
Barclays
Capital Inc.
|
$3,750,000
|
BB&T
Capital Markets, a division of Scott & Stringfellow,
Inc.
|
$3,750,000
|
BMO
Capital Markets Corp.
|
$3,750,000
|
BNP
Paribas Securities Corp.
|
$3,750,000
|
BNY
Capital Markets, Inc.
|
$3,750,000
|
Fifth
Third Securities, Inc.
|
$3,750,000
|
HSBC
Securities (USA) Inc.
|
$3,750,000
|
Morgan
Keegan & Company, Inc.
|
$3,750,000
|
NatCity
Investments, Inc.
|
$3,750,000
|
Wedbush
Morgan Securities Inc.
|
$3,750,000
|
Wells
Fargo Securities, LLC
|
$3,750,000
|
|
|
Total
|
$250,000,000
|
Underwriter
|
Principal
amount of 2037 Notes
|
J.P.
Morgan Securities Inc.
|
$109,160,000
|
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
|
$109,160,000
|
Wachovia
Capital Markets, LLC
|
$109,160,000
|
Banc
of America Securities LLC
|
$30,020,000
|
U.S.
Bancorp Investments, Inc.
|
$30,000,000
|
SunTrust
Robinson Humphrey, Inc.
|
$30,000,000
|
Barclays
Capital Inc.
|
$7,500,000
|
BB&T
Capital Markets, a division of Scott & Stringfellow,
Inc.
|
$7,500,000
|
BMO
Capital Markets Corp.
|
$7,500,000
|
BNP
Paribas Securities Corp.
|
$7,500,000
|
BNY
Capital Markets, Inc.
|
$7,500,000
|
Fifth
Third Securities, Inc.
|
$7,500,000
|
HSBC
Securities (USA) Inc.
|
$7,500,000
|
Morgan
Keegan & Company, Inc.
|
$7,500,000
|
NatCity
Investments, Inc.
|
$7,500,000
|
Wedbush
Morgan Securities Inc.
|
$7,500,000
|
Wells
Fargo Securities, LLC
|
$7,500,000
|
|
|
Total
|
$500,000,000
|
SCHEDULE
B
Final
Term Sheet
Filed
Pursuant to Rule 433
Registration
Statement No. 333-137750
September
6, 2007
Lowe’s
Companies, Inc.
5.60%
Notes Due 2012
6.10%
Notes Due 2017
6.65%
Notes Due 2037
5.60%
Notes Due 2012
Issuer:
|
Lowe’s
Companies, Inc.
|
|
|
Aggregate
Principal Amount
Offered:
|
$550,000,000
|
|
|
Maturity Date:
|
September
15, 2012
|
|
|
Coupon (Interest
Rate):
|
5.60% per annum
|
|
|
Price
to Public (Issue Price):
|
99.831%
of principal amount, plus accrued interest from the expected settlement
date
|
|
|
Yield to
Maturity:
|
5.639%
|
|
|
Net Proceeds:
|
$547,145,500
(
before
transaction expenses)
|
|
|
Benchmark
Treasury:
|
UST 4.125% due August 31, 2012
|
|
|
Benchmark
Treasury
Price
and Yield:
|
99-20; 4.209%
|
|
|
Spread to Benchmark
Treasury:
|
1.43% (143 basis points)
|
|
|
Interest
Payment Dates:
|
Semi-annually
on March 15 and September 15, commencing on March 15,
2008
|
|
|
Day
Count:
|
30/360
|
|
|
Make
Whole Call:
|
T+
20 basis points
|
|
|
Change
of Control:
|
If
a change of control triggering event occurs, unless the Issuer
has
exercised its right to redeem the Notes, it will be required to
make an
offer to purchase the Notes at a purchase price equal to 101% of
the
principal amount of the Notes, plus accrued and unpaid interest,
if any,
to the date of redemption.
|
|
|
Minimum
Denominations:
|
$1,000
and integral multiples of $1,000 in excess thereof
|
|
|
Trade Date:
|
September 6, 2007
|
|
|
Settlement Date
(T+3):
|
September 11, 2007
|
|
|
Underwriters:
|
J.P.
Morgan Securities Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Wachovia Capital Markets, LLC
|
|
|
Co-Managers:
|
Banc
of America Securities LLC, Barclays Capital Inc., BB&T Capital
Markets, a division of Scott & Stringfellow, Inc., BMO Capital Markets
Corp., BNP Paribas Securities Corp., BNY Capital Markets, Inc.,
Fifth
Third Securities, Inc., HSBC Securities (USA) Inc., Morgan Keegan
&
Company, Inc., NatCity Investments, Inc., SunTrust Robinson Humphrey,
Inc.,
U.S.
Bancorp Investments, Inc.,
Wedbush
Morgan Securities Inc. and Wells Fargo Securities, LLC
|
|
|
Long-term
debt ratings:
|
Moody’s,
A1 (Stable); S&P, A+ (Stable); Fitch, A+
(Stable)
|
Note
:
A
securities rating is not a recommendation to buy, sell or hold securities
and
may be subject to revision or withdrawal at any time
6.10%
Notes Due 2017
Issuer:
|
Lowe’s
Companies, Inc.
|
|
|
Aggregate
Principal Amount
Offered:
|
$250,000,000
|
|
|
Maturity Date:
|
September
15, 2017
|
|
|
Coupon (Interest
Rate):
|
6.10% per annum
|
|
|
Price
to Public (Issue Price):
|
99.918%
of principal amount, plus accrued interest from the expected
settlement
date
|
|
|
Yield to
Maturity:
|
6.111
%
|
|
|
Net Proceeds:
|
$248,670,000
(
before
transaction expenses)
|
|
|
Benchmark
Treasury:
|
UST 4.75% due August 15, 2017
|
|
|
Benchmark
Treasury
Price
and Yield:
|
101-28+; 4.511%
|
|
|
Spread to Benchmark
Treasury:
|
1.60% (160 basis points)
|
|
|
Interest
Payment Dates:
|
Semi-annually
on March 15 and September 15, commencing on March 15,
2008
|
|
|
Day
Count:
|
|
|
|
Make
Whole Call:
|
|
|
|
Change
of Control:
|
If
a change of control triggering event occurs, unless the Issuer
has
exercised its right to redeem the Notes, it will be required
to make an
offer to purchase the Notes at a purchase price equal to 101%
of the
principal amount of the Notes, plus accrued and unpaid interest,
if any,
to the date of redemption.
|
|
|
Minimum
Denominations:
|
$1,000
and integral multiples of $1,000 in excess
thereof
|
|
|
Trade
Date:
|
September 6, 2007
|
|
|
Settlement
Date
(T+3):
|
September 11, 2007
|
|
|
Underwriters:
|
J.P. Morgan Securities Inc., Merrill
Lynch,
Pierce, Fenner & Smith Incorporated and Wachovia Capital Markets,
LLC
|
|
|
Co-Managers:
|
Banc
of America Securities LLC, Barclays Capital Inc., BB&T Capital
Markets, a division of Scott & Stringfellow, Inc., BMO Capital Markets
Corp., BNP Paribas Securities Corp., BNY Capital Markets, Inc.,
Fifth
Third Securities, Inc., HSBC Securities (USA) Inc., Morgan Keegan
&
Company, Inc., NatCity Investments, Inc., SunTrust Robinson Humphrey,
Inc., U.S. Bancorp Investments, Inc., Wedbush Morgan Securities
Inc. and
Wells Fargo Securities, LLC
|
|
|
Long-term
debt ratings:
|
Moody’s,
A1 (Stable); S&P, A+ (Stable); Fitch, A+
(Stable)
|
Note
:
A
securities rating is not a recommendation to buy, sell or hold securities
and
may be subject to revision or withdrawal at any time