AMENDED AND RESTATED
SELLING AGENT AGREEMENT
by and among
HSBC Finance Corporation,
Incapital LLC (as Purchasing
Agent)
and the
Agents named herein
December 21, 2006
CHI99
4594812-7.021110.0014
December 21, 2006
To Incapital LLC and the Agents listed
on
the signature page
hereto.
HSBC Finance Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell up to
$5,000,000,000 aggregate principal amount of its HSBC Finance
InterNotes® due nine months or more from date of issue (the
"Notes"), of which $3,769,803,470 have been issued and sold prior
to the date hereof. The Notes constitute a part of a series of
senior debt securities, unlimited as to aggregate principal amount,
to be issued pursuant to the Amended and Restated Indenture for
Senior Debt Securities (the "Indenture") dated as of
December 15, 2004, between the Company and JPMorgan Chase
Bank, as trustee (the "Trustee"), which incorporates therein the
terms and conditions of the Amended and Restated Standard
Multiple-Series Indenture Provisions for Senior Debt Securities
dated as of December 15, 2004. The terms of the Notes are
described in the Prospectus referred to below.
Subject to the terms and conditions
contained in this Selling Agent Agreement (the "Agreement"), the
Company hereby (1) appoints Incapital LLC, as purchasing agent (the
"Purchasing Agent"), (2) appoints each of the other parties listed
on the signature page as agent of the Company (each an "Agent" and
together, the "Agents") for the purpose of soliciting offers to
purchase the Notes and each of the Agents hereby agrees to use
reasonable best efforts to solicit offers to purchase Notes upon
terms acceptable to the Company at such times and in such amounts
as the Company shall from time to time specify and in accordance
with the terms hereof, and, after consultation with the Purchasing
Agent and (3) agrees that whenever the Company determines to sell
Notes pursuant to this Agreement, such Notes shall be sold pursuant
to a Terms Agreement (as defined herein) relating to such sale in
accordance with the provisions of Section V hereof between the
Company and the Purchasing Agent, with the Purchasing Agent
purchasing such Notes as principal for resale to the Agents or
dealers (the "Selected Dealers"), each of whom will purchase such
notes as principal. The Company reserves the right to enter into
agreements substantially identical hereto with other agents,
subject to prior notification to the Purchasing Agent of any such
agreements.
I.
The Company has filed with the
Securities and Exchange Commission (the "SEC") a registration
statement on Form S-3 (Registration No. 333-120496) relating to the
Notes and the offering thereof, from time to time, in accordance
with Rule 415 under the Securities Act of 1933, as amended (the
"1933 Act") (such registration statement, including all exhibits
thereto but excluding Form T-1, as amended at the time such
registration statement or any part thereof became effective, being
hereinafter called the "Registration Statement"). Such Registration
Statement has been declared effective by the SEC, and the Indenture
has been qualified under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"). The prospectus relating to the
Notes constituting part of the Registration Statement, including
the documents incorporated by reference therein as of the effective
date of the Registration Statement, and as from time to time
amended or supplemented (including by the filing of documents
incorporated therein by reference and by any Pricing Supplement (as
herein defined)) shall hereinafter be referred to as the
"Prospectus."
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II.
The obligations hereunder of the
Purchasing Agent and the Agents are subject to the following
conditions:
(a) On
the date hereof, the Purchasing Agent and the Agents shall have
received the following legal opinions, dated as of the date hereof
and in form and substance satisfactory to them:
(1) The
opinion of Patrick D. Schwartz, Deputy General Counsel - Corporate
and Assistant Secretary of the Company, or other counsel to the
Company satisfactory to the Purchasing Agent and the Agents
that:
(i) The
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Delaware;
(ii) The
significant subsidiaries, as defined in Rule 1-02 of
Regulation S-X of the SEC (the "significant subsidiaries"), of
the Company are validly organized and existing corporations under
the laws of their respective jurisdictions of
incorporation;
(iii) The
Company and its significant subsidiaries are duly authorized under
statutes which regulate the business of insurance or banking or the
business of making loans or of financing the sale of goods
(commonly called "small loan laws," "consumer finance laws," or
"sales finance laws"), or are permitted under the general interest
statutes and related laws and court decisions, to conduct in the
various jurisdictions in which they do business the respective
businesses therein conducted by them as described in the
Prospectus, except where failure to be so permitted or failure to
be so authorized will not have a material adverse effect on the
business or consolidated financial condition of the Company and its
subsidiaries taken as a whole;
(iv) The
Company has an authorized capitalization as set forth in the
Prospectus and all of the outstanding shares of its common stock
have been duly and validly authorized and issued, are fully paid
and non assessable and are indirectly owned by the Company's
ultimate parent, HSBC Holdings plc;
(v) To
the best of such counsel's knowledge, there are no legal or
governmental proceedings pending, other than those referred to or
incorporated in the Prospectus, to which the Company or any of its
subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which individually or in the
aggregate is material, and, to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(vi) This
Agreement has been duly authorized, executed and delivered by the
Company;
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(vii) The
Indenture has been duly authorized, executed and delivered by the
Company, and constitutes a valid and legally binding instrument of
the Company enforceable in accordance with its terms except as
enforcement of the provisions thereof may be limited by bankruptcy,
insolvency, reorganization or other laws relating to or affecting
the enforcement of creditors' rights or by general principles of
equity; the Indenture has been duly qualified under the Trust
Indenture Act; and all taxes and fees required to be paid with
respect to the execution of the Indenture and the issuance of the
Notes have been paid;
(viii) The
Notes have been duly authorized and, when the Notes have been duly
executed, authenticated, issued and delivered in accordance with
the provisions of the Indenture, the applicable board resolutions
and this Agreement, against payment of the agreed consideration
therefor, the Notes will constitute valid and legally binding
obligations of the Company and, with like exceptions as noted in
subdivision (vii) above, will be entitled to the benefits provided
by the Indenture; and the Notes and the Indenture conform to the
descriptions thereof in the Prospectus;
(ix) The
issue and sale of the Notes, and the compliance by the Company with
all of the provisions of the Notes, the Indenture, this Agreement
and any Terms Agreement 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 of the property or assets of the
Company or any of its subsidiaries pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement, or other
agreement or instrument, known to such counsel to which the Company
or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries may be bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject (except for conflicts, breaches and defaults which would
not, individually or in the aggregate, be materially adverse to the
Company and its subsidiaries taken as a whole or materially adverse
to the transactions contemplated by this Agreement) nor will such
action result in any violation of the provisions of the charter or
the by-laws of the Company or any of its subsidiaries or, to the
best of such counsel's knowledge, any statute or any order, rule or
regulation applicable to the Company or any of its subsidiaries of
any court or of any Federal, state or other regulatory authority or
other governmental body having jurisdiction over the Company or any
of its subsidiaries; and no consent, approval, authorization,
order, registration or qualification of or with any court or any
such regulatory authority or other governmental body is required
for the issue and sale of the Notes or the consummation of the
other transactions contemplated in this Agreement and any Terms
Agreement, except the registration under the 1933 Act of the Notes,
the qualification of the Indenture under the Trust Indenture Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue
Sky Laws in connection with the public offering of the Notes by the
Agents;
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(x) The
documents incorporated by reference in the Prospectus (other than
the financial statements and related schedules therein, as to which
such counsel need express no opinion), when they became effective
or were filed with the SEC, as the case may be, complied as to form
in all material respects with the requirements of the 1933 Act or
the Securities Exchange Act of 1934, as amended (the "1934 Act"),
as applicable, and the General Rules and Regulations of the 1933
Act (the "1933 Act Regulations") or the General Rules and
Regulations of the 1934 Act (the "1934 Act Regulations"), as
applicable; and such counsel has no reason to believe that any of
such documents, when they became effective or were so filed, as the
case may be, contained, in the case of documents which became
effective under the 1933 Act, an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
and, in the case of documents which were filed under the 1934 Act
with the SEC, an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such documents were so filed, not misleading;
(xi) The
Registration Statement has become and is now effective under the
1933 Act and no proceedings for a stop order in respect of the
Registration Statement are pending or, to the best of such
counsel's knowledge, threatened under Section 8(d) or 8(e) of the
1933 Act; and
(xii) The
Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to the
date hereof (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the
Trust Indenture Act and the rules and regulations
thereunder.
Such counsel shall also state that
such counsel has no reason to believe that the Registration
Statement or any amendment thereof (including the filing of any
annual report on Form 10-K) at the time such Registration Statement
or amendment thereto became effective contained an untrue statement
of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading or that the Prospectus as of its date and at the date
hereof contained or contains any untrue statement of a material
fact or omitted or omits 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; and such
counsel does not know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus or required to be described in the Registration
Statement or the Prospectus which are not filed or incorporated by
reference or described as required;
(2) The
opinion of McDermott Will & Emery LLP, counsel to the
Purchasing Agent and the Agents, with respect to this Agreement,
the validity of the Indenture, the Notes, the Registration
Statement, the Prospectus and other related matters
CHI99 4594812-7.021110.0014
as you may reasonably request, and
such counsel shall have received such documents, certificates and
information as they may reasonably request to enable them to pass
upon such matters.
(b) On
the date hereof, the Purchasing Agent and the Agents shall have
received a certificate of the President or any Vice President or
any other authorized officer of the Company satisfactory to them
(each, an "Authorized Officer"), dated as of the date hereof, to
the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus and this
Agreement and that to the best of their knowledge (i) since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
material adverse change in the condition, financial or otherwise,
earnings or business affairs of the Company and its subsidiaries
considered as one enterprise, whether or not arising from
transactions in the ordinary course of business, except as set
forth or contemplated in the Prospectus, (ii) the other
representations and warranties of the Company contained in this
Agreement are true and correct in all material respects with the
same force and effect as though expressly made at and as of the
date of such certificate, (iii) the Company has performed or
complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the date
of such certificate, (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or threatened by
the SEC and (v) no litigation or proceeding shall be threatened or
pending to restrain or enjoin the issuance or delivery of the
Notes, or which in any way affects the validity of the
Notes.
(c) On
the date hereof, the Purchasing Agent and the Agents shall have
received a letter from KPMG LLP ("KPMG") dated as of the date
hereof and in form and substance satisfactory to them, to the
effect that:
(1) They
are an independent registered public accounting firm with respect
to the Company and its subsidiaries within the meaning of the 1933
Act and the 1933 Act Regulations.
(2) In
their opinion, the consolidated financial statements of the Company
and its subsidiaries audited by them and included or incorporated
by reference in the Registration Statement and Prospectus comply as
to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations with
respect to registration statements on Form S-3 and the 1934 Act and
the 1934 Act Regulations.
(3) On
the basis of procedures (but not an audit in accordance with
generally accepted auditing standards) consisting of:
(i) Reading
the minutes of the meetings of the board of directors and
committees of the board of directors of the Company as set forth in
the minute books through a specified date not more than five
business days prior to the date of delivery of such
letter;
CHI99 4594812-7.021110.0014
(ii) Performing
the procedures specified by the standards of the Public Company
Accounting Oversight Board (United States) for a review of interim
financial information as described in SAS 100, Interim Financial
Information, on the unaudited condensed consolidated interim
financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement and Prospectus and reading the unaudited
interim financial data, if any, for the period from the date of the
latest balance sheet included or incorporated by reference in the
Registration Statement and Prospectus to the date of the latest
available interim financial data; and
(iii) Making
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters regarding the
specific items for which representations are requested
below;
nothing has come to their attention
as a result of the foregoing procedures that caused them to believe
that:
(i) the
unaudited condensed consolidated interim financial statements,
included or incorporated by reference in the Registration Statement
and Prospectus, do not comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act and the
1934 Act Regulations thereunder;
(ii) any
material modifications should be made to the unaudited condensed
consolidated interim financial statements, included or incorporated
by reference in the Registration Statement and Prospectus, for them
to be in conformity with generally accepted accounting
principles;
(iii) (a) at
the date of the latest available interim financial statements,
there was any change in net charge-offs of finance receivables
owned, any change in revenue, or any change in net income as
compared to the corresponding period in the prior year, or (b)
there was any change in senior and senior subordinated debt (with
original maturities over one year), or any change in commercial
paper, bank or other borrowings, as compared with the corresponding
amounts included in the most recent audited financial statements of
the Company incorporated by reference in the Registration Statement
and Prospectus, except in all instances for changes or decreases
which the Registration Statement and Prospectus disclose have
occurred or may occur, or KPMG shall state any specific
changes.
(4) The
letter shall also state that KPMG has carried out certain other
specified procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information which are
included or incorporated by reference in the Registration Statement
and Prospectus and which are specified by the Purchasing Agent and
the Agents and agreed to by KPMG, and has found such amounts,
percentages
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and financial information to be in
agreement with the relevant accounting, financial and other records
of the Company and its subsidiaries identified in such
letter.
(d) On
the date hereof, counsel to the Purchasing Agent and the Agents
shall have been furnished with such documents and opinions as such
counsel may reasonably require for the purpose of enabling such
counsel to pass upon the issuance and sale of Notes as herein
contemplated, or in order to evidence the accuracy and completeness
of any of the representations and warranties, or the fulfillment of
any of the conditions, contained herein; and all proceedings taken
by the Company in connection with the issuance and sale of Notes as
herein contemplated shall be satisfactory in form and substance to
such counsel and to the Purchasing Agent and the Agents.
The obligations of the Purchasing
Agent and any Agent to purchase Notes in connection with any Terms
Agreement are subject to the conditions that (i) no litigation or
proceeding shall be threatened or pending to restrain or enjoin the
issuance or delivery of the Notes, or which in any way questions or
affects the validity of the Notes, (ii) no stop order suspending
the effectiveness of the Registration Statement shall be in effect,
and no proceedings for such purpose shall be pending before or
threatened by the SEC, (iii) the ratings assigned by any nationally
recognized statistical rating organization, as that term is defined
by the SEC for purpose of Rule 436(g) promulgated under the 1933
Act, to any senior debt securities of the Company as of the date of
such Terms Agreement shall not have been lowered since that date,
(iv) prior to the applicable Settlement Date (as defined herein),
(A) the Company shall have filed with the SEC (A) the
applicable Pricing Supplement in the manner and within the time
period required by Rule 424(b) under the 1933 Act and (B) any term
sheet setting forth the final terms of any series of Notes and any
other Company Free Writing Prospectus (as defined herein) required
to be filed by the Company with respect to the applicable Notes
pursuant to Rule 433(d) under the 1933 Act within the applicable
time periods prescribed for such filings under such Rule 433 or, if
applicable, in accordance with Rule 164(b), and (v) there shall not
have come to the attention of the Purchasing Agent or any Agent
purchasing Notes as principal any facts that would cause the
Purchasing Agent or any such Agent to believe that the Disclosure
Package (as defined below), including any Agent Limited-Use Free
Writing Prospectus (as defined below), at the Time of Acceptance
(as defined below) with respect to the Notes to be issued,
contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at the time of such
delivery, not misleading. Each of such conditions shall be met on
the date of the Terms Agreement and on the corresponding Settlement
Date (as defined herein). Further, if specifically called for by
any Terms Agreement, the Purchasing Agent's obligations hereunder
and under such Terms Agreement shall be subject to such additional
conditions, including those set forth in clauses (i) through (v)
above, as agreed to by the parties, each of which such agreed
conditions shall be met on the corresponding Settlement
Date.
III.
In further consideration of your
agreements herein contained, the Company covenants as
follows:
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(a) The
Company will notify the Purchasing Agent and the Agents immediately
of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the filing of any amendment or supplement to the
Prospectus (including any Company Free Writing Prospectus) or any
document to be filed pursuant to the 1934 Act which will be
incorporated by reference in the Prospectus (other than a Pricing
Supplement (as defined below) or preliminary Pricing Supplement),
(iii) the receipt of any comments from the SEC with respect to
the Registration Statement, the Prospectus or the Disclosure
Package (other than with respect to a document filed with the SEC
pursuant to the 1934 Act which is or will be incorporated by
reference in the Registration Statement and the Prospectus), (iv)
any request by the SEC for any amendment to the Registration
Statement, any amendment or supplement to the Prospectus or the
Disclosure Package or for additional information relating thereto
(other than such a request with respect to a document filed with
the SEC pursuant to the 1934 Act which is or will be incorporated
by reference in the Registration Statement and the Prospectus), and
(v) the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose. 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.
(b) The
Company will give the Purchasing Agent and the Agents notice of its
intention to file or prepare any additional registration statement
with respect to the registration of additional Notes or any
amendment to the Registration Statement or any amendment or
supplement to the Prospectus (other than an amendment or supplement
effected by the filing of a document with the SEC pursuant to the
1934 Act) and, upon request, will furnish the Purchasing Agent and
the Agents with copies of any such registration statement or
amendment or supplement proposed to be filed or prepared a
reasonable time in advance of such proposed filing or preparation,
as the case may be, and will not file any such registration
statement or amendment or supplement in a form as to which the
Purchasing Agent or the Agents or your counsel reasonably
object.
(c) The
Company will deliver to the Purchasing Agent and the Agents without
charge, a copy of (i) the Indenture, (ii) the Registration
Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith and documents incorporated by
reference in the Prospectus) and (iii) a certified copy of the
corporate authorization of the issuance and sale of the Notes. The
Company will furnish to the Purchasing Agent and the Agents as many
copies of the Prospectus (as amended or supplemented) or any
Company Free Writing Prospectus as they shall reasonably request so
long as the Agents are required to deliver a Prospectus in
connection with sales or solicitations of offers to purchase the
Notes under the 1933 Act.
(d) The
Company will prepare, with respect to any Notes to be sold through
or to the Purchasing Agent or an Agent pursuant to this Agreement,
a pricing supplement with respect to such Notes in substantially
the form previously approved by the Purchasing Agent and the Agents
(each a “Pricing Supplement”) and will file such
Pricing Supplement with the SEC pursuant to Rule 424(b) under the
1933 Act not later than the close of business on the second
business day following the earlier of the date of the determination
of the offering price for the applicable Notes or the date on which
such Pricing Supplement is first used. If the Purchasing Agent or
an Agent has advised the Company that the Purchasing Agent or Agent
is relying, in
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connection with any offering of
Notes, upon the exemption from Section 5(b) of the 1933 Act set
forth in Rule 172 under the 1933 Act, and the Company is unable to
file the applicable Pricing Supplement within the time period
specified in the previous sentence, the Company shall file such
Pricing Supplement as soon as practicable thereafter, as
contemplated by Rule 172(c)(3).
(e) Except
as otherwise provided in subsection (k) of this Section, if at any
time during the term of this Agreement any event shall occur or
condition exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Purchasing Agent and the
Agents or counsel for the Company, to further amend or supplement
the Prospectus or the Disclosure Package in order that the
Prospectus or the Disclosure Package will not include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein not misleading in
light of the circumstances existing at the time the Prospectus is
delivered to a purchaser, or if it shall be necessary, in the
reasonable opinion of either such counsel, to amend or supplement
the Registration Statement, the Prospectus or the Disclosure
Package in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, immediate notice shall be given, and
confirmed in writing, to each Agent to cease the solicitation of
offers to purchase the Notes in the Agent’s capacity as agent
(and, if so notified, such Agent shall promptly cease such
solicitation), to cease sales of any Notes the Agent may then own
as principal and to terminate any purchase contracts for the Notes,
and the Company will promptly prepare and file with the SEC such
amendment or supplement, whether by filing documents pursuant to
the 1934 Act, the 1933 Act or otherwise (including, if consented to
by the Agents, by means of a Company Free Writing Prospectus), as
may be necessary to correct such untrue statement or omission or to
make the Registration Statement, the Prospectus and the Disclosure
Package comply with such requirements.
(f) Except
as otherwise provided in subsection (k) of this Section, on or
prior to the date on which there shall be released to the general
public interim financial statement information related to the
Company with respect to each of the first three quarters of any
fiscal year or preliminary financial statement information with
respect to any fiscal year, the Company shall furnish promptly such
information to the Purchasing Agent and the Agents, confirmed in
writing, and thereafter shall cause promptly the Prospectus to be
amended or supplemented to include or incorporate by reference
financial information with respect thereto, as well as such other
information and explanations as shall be necessary for an
understanding thereof, as may be required by the 1933 Act or the
1934 Act or otherwise.
(g) Except
as otherwise provided in subsection (k) of this Section, on or
prior to the date on which there shall be released to the general
public financial information included in or derived from the
audited financial statements of the Company for the preceding
fiscal year, the Company shall furnish promptly such information to
the Purchasing Agent and the Agents and thereafter shall cause
promptly the Registration Statement and the Prospectus to be
amended to include or incorporate by reference such audited
financial statements and the report or reports, and consent or
consents to such inclusion or incorporation by reference, of the
independent accountants with respect thereto, as well as such other
information and explanations as shall be necessary for an
understanding of such financial statements, as may be required by
the 1933 Act or the 1934 Act or otherwise.
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(h) As
soon as practicable but in any event not later than 16 months after
the date of each acceptance by the Company of an offer to purchase
Notes hereunder, the Company will make generally available to its
security holders an earnings statement that will satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder
covering a period of at least 12 months beginning after the last to
occur of (i) the effective date of the Registration Statement, (ii)
the effective date of the most recent post-effective amendment to
the Registration Statement to become effective prior to the date of
such acceptance, (iii) the date of the Annual Report of the Company
on Form 10-K most recently filed with the SEC prior to the date of
such acceptance and (iv) the date a prospectus supplement filed in
connection with an offer to purchase Notes is deemed a part of the
Registration Statement pursuant to Rule 430B.
(i) The
Company will endeavor to qualify the Notes for offering and sale
under the applicable securities laws of such states and other
jurisdictions of the United States as the Purchasing Agent and the
Agents may designate and will maintain such qualifications in
effect for as long as may be required for the distribution of the
Notes; 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 in any jurisdiction in which it is not so
qualified. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Notes
have been qualified as above provided. The Company will promptly
advise the Purchasing Agent and the Agents of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or
jurisdiction or the initiating or threatening of any proceeding for
such purpose.
(j) The
Company, during the period when the Prospectus is required to be
delivered under the 1933 Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the 1933
Act), will file promptly all documents required to be filed with
the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934
Act.
(k) The
Company shall not be required to comply with the provisions of
subsections (e), (f) or (g) of this Section or the provisions of
Sections VII(b), (c) and (d) during any period from the time (i)
the Agents have suspended solicitation of purchases of the Notes
pursuant to a direction from the Company and (ii) the Agents shall
not then hold any Notes as principal purchased from the Purchasing
Agent to the time the Company shall determine that solicitation of
purchases of the Notes should be resumed or shall subsequently
agree for the Purchasing Agent to purchase Notes as
principal.
(l) If
immediately prior to December 1, 2008 (the “Renewal
Deadline”), any of the Notes remain unsold by the Purchasing
Agent or the Agents, the Company will, prior to the Renewal
Deadline, if it has not already done so, either (i) file an
automatic shelf registration statement relating to the Notes, if it
is eligible to do so, in a form satisfactory to the Purchasing
Agent and the Agents or (ii) file a new shelf registration
statement relating to the Notes, in a form satisfactory to the
Purchasing Agent and the Agents; provided, however, that if the
Company is eligible to file an automatic shelf registration
statement and elects to file a shelf registration statement
pursuant to this clause (ii), the Company will file such shelf
registration statement no later than 75 calendar days prior to the
Renewal Deadline, and will use its best efforts to cause such
registration statement to be declared effective on or before the
Renewal Deadline. The Company will take all other action reasonably
necessary or appropriate to permit
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the public offering and sale of the
Notes to continue as contemplated in the expired registration
statement relating to the Notes. References herein to the
registration statement relating to the Notes shall include such new
automatic shelf registration statement or such new shelf
registration statement, as the case may be.
IV.
(a) The
Agents propose to solicit offers to purchase the Notes upon the
terms and conditions set forth herein and in the Prospectus and
upon the terms communicated to the Agents from time to time by the
Purchasing Agent. For the purpose of such solicitation the Agents
will use the Prospectus as then amended or supplemented which has
been most recently distributed to the Agents by the Company, and
the Agents will solicit offers to purchase only as permitted or
contemplated thereby and herein and will solicit offers to purchase
the Notes only as permitted by the 1933 Act and the applicable
securities laws or regulations of any jurisdiction. The Company
reserves the right, in its sole discretion, to suspend solicitation
of offers to purchase the Notes commencing at any time for any
period of time or permanently. Upon receipt of instructions (which
may be given orally) from the Company to the Purchasing Agent, the
Agents will suspend promptly solicitation of offers to purchase
until such time as the Company has advised the Purchasing Agent
that such solicitation may be resumed.
Unless otherwise instructed by the
Company, the Agents are authorized to solicit offers to purchase
the Notes only in denominations of $1,000 or more (in integral
multiples of $1,000). The Agents are not authorized to appoint
subagents or to engage the services of any other broker or dealer
in connection with the offer or sale of the Notes without the
consent of the Company. Unless otherwise instructed by the Company,
the Purchasing Agent shall communicate to the Company, orally or in
writing, each offer to purchase Notes. The Company shall have the
sole right to accept offers to purchase Notes and may reject any
proposed offers to purchase Notes as a whole or in part. The
Purchasing Agent and each Agent shall have the right, in its
discretion reasonably exercised, to reject any proposed purchase of
Notes, as a whole or in part, and any such rejection shall not be
deemed a breach of its agreements contained herein. The Company
agrees to pay the Purchasing Agent, as consideration for soliciting
offers to purchase Notes pursuant to a Terms Agreement, a
concession in the form of a discount equal to the percentages of
the initial offering price of each Note actually sold as set forth
in Exhibit A hereto (the "Concession"). The Purchasing Agent
and the Agents will share the above-mentioned Concession with
Agents and the Selected Dealers, as applicable, in such proportions
as they may agree.
Unless otherwise authorized by the
Company, all Notes shall be sold to the public at a purchase price
not to exceed 100% of the principal amount thereof, plus accrued
interest, if any. Such purchase price shall be set forth in the
confirmation statement of the Agent or Selected Dealer responsible
for such sale and delivered to the purchaser along with a copy of
the Prospectus (if not previously delivered) and Pricing
Supplement.
(b) Procedural
details relating to the issue and delivery of, and the solicitation
of purchases and payment for, the Notes are set forth in the
Administrative Procedures attached hereto as Exhibit B (the
"Procedures"), as amended from time to time. The provisions of the
Procedures shall apply to all transactions contemplated hereunder
unless otherwise provided in a
CHI99 4594812-7.021110.0014
Terms Agreement. The Company, the
Purchasing Agent and the Agents each agree to perform the
respective duties and obligations specifically provided to be
performed by each in the Procedures as amended from time to time.
The Procedures may only be amended by written agreement of the
Company, the Purchasing Agent and the Agents.
(c) The
Company, the Purchasing Agent and each Agent acknowledges and
agrees, and each Selected Dealer will be required to acknowledge
and agree, that the Notes are being offered for sale in the United
States only.
V.
Each sale of Notes shall be made in
accordance with the terms of this Agreement and a separate
agreement in substantially the form attached as Exhibit C (a
"Terms Agreement") to be entered into which will provide for the
sale of such Notes to, and the purchase and reoffering thereof, by
the Purchasing Agent as principal. A Terms Agreement may also
specify certain provisions relating to the reoffering of such Notes
by the Purchasing Agent. The offering of Notes by the Company
hereunder and the Purchasing Agent's agreement to purchase Notes
pursuant to any Terms Agreement shall be deemed to have been made
on the basis of the representations, warranties and agreements of
the Company herein contained and shall be subject to the terms and
conditions herein set forth. Each Terms Agreement shall describe
the Notes to be purchased pursuant thereto by the Purchasing Agent
as principal, and may specify, among other things, the principal
amount of Notes to be purchased, the interest rate or interest rate
formula, the stated maturity date or dates of such Notes, the
interest payment dates, if any, the net proceeds to the Company,
the initial public offering price at which the Notes are proposed
to be reoffered, and the time and place of delivery of and payment
for such Notes (the "Settlement Date"), whether the Notes provide
for a Survivor's Option, whether the Notes are redeemable or
repayable and on what terms and conditions, and any other relevant
terms. In connection with the resale of the Notes purchased,
without the consent of the Company, the Agents are not authorized
to appoint subagents or to engage the service of any other broker
or dealer, nor may the Agents reallow any portion of the Concession
paid to them. Terms Agreements, each of which shall be
substantially in the form of Exhibit C hereto, or as
otherwise agreed to between the Company and the Purchasing Agent,
may take the form of an exchange of any standard form of written
telecommunication between the Purchasing Agent and the
Company.
VI.
The Company represents and warrants
to the Purchasing Agent and the Agents as of the date hereof, as of
the time of each acceptance (the “Time of Acceptance”)
by the Company of an offer for the purchase of Notes (including any
purchase by the Purchasing Agent as principal, pursuant to a Terms
Agreement or otherwise), as of each Settlement Date, and as of any
time that the Registration Statement or the Prospectus shall be
amended or supplemented or there is filed with the SEC any document
incorporated by reference into the Prospectus (other than any
Current Report on Form 8-K relating exclusively to the issuance of
debt securities under the Registration Statement or furnished
solely for the purpose of disclosure under Item 2.02 or Item 7.01
thereof) (each of the times referenced above, including a
Settlement Date, being referred to herein as a
“Representation Date”) as follows:
CHI99 4594812-7.021110.0014
(a) The
Company meets the requirements for use of Form S-3 under the 1933
Act and has filed with the SEC the Registration Statement, which
has been declared effective. The Registration Statement meets the
requirements of Rule 415(a)(1) under the 1933 Act and complies in
all other material respects with said Rule. No stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been initiated or
threatened by the SEC. The Company represents that as of the date
hereof and at the earliest time after the Company or any Agent
makes a bona fide offer (within the meaning of Rule
164(h)(2)) of the 1933 Act with respect to any series of Notes
hereunder, the Company is not and will not be an “ineligible
issuer” (as defined in Rule 405 of the 1933 Act);
(b) The
documents incorporated by reference in the Prospectus, when they
became effective or were filed with the SEC, as the case may be,
conformed in all material respects to the requirements of the 1933
Act or the 1934 Act, as applicable, and the 1933 Act Regulations
and 1934 Act Regulations, and none of such documents contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so
filed and incorporated by reference in the Prospectus and any
amendments or supplements thereto, when they become effective or
are filed with the SEC, as the case may be, will conform in all
material respects to the requirements of the 1933 Act or the 1934
Act, as applicable, and the rules and regulations of the SEC
thereunder 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;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by
the Purchasing Agent or any Agent expressly for use in the
Prospectus as amended or supplemented to relate to a particular
issuance of Notes;
(c) The
Registration Statement and the Prospectus conform, and any
amendments or supplements thereto will conform, when they become
effective or are filed with the SEC, as the case may be, and as of
each subsequent Representation Date will conform, in all material
respects to the requirements of the 1933 Act, the 1933 Act
Regulations and the Trust Indenture Act and the rules and
regulations of the SEC thereunder and do not and will not as of its
effective date as to the Registration Statement and as of its
filing date and as of each Representation Date as to the Prospectus
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by any Agent expressly for use
in the Prospectus as amended or supplemented to relate to a
particular issuance of Notes;
(d) As
of the Time of Acceptance with respect to any offering of Notes,
the Company Free Writing Prospectus(es) (as defined below), if any,
issued at or prior to the Time of Acceptance and the Prospectus
(and if applicable, any preliminary Pricing Supplement relating to
such Notes), all considered together (collectively, the
“Disclosure Package”), shall not contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions in any Company Free Writing
Prospectus made in reliance upon and
CHI99 4594812-7.021110.0014
in conformity with information
furnished in writing to the Company by any Agent expressly for use
therein. As used in this Agreement, “Company Free Writing
Prospectus” means any “issuer free writing
prospectus” (as defined in Rule 433 under the 1933 Act)
relating to the Notes that (i) is required to be filed with the SEC
by the Company, including any term sheet setting forth the final
terms of any series of Notes, or (ii) is exempt from filing
pursuant to Rule 433(d)(5)(i) under the 1933 Act because it
contains a description of the applicable Notes or of the applicable
offering that does not reflect the final terms, in each case in the
form filed or required to be filed with the SEC or, if not required
to be filed, in the form retained in the Company’s records
pursuant to Rule 433(g) under the 1933 Act.
(e) Each
Company Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and
sale of the applicable Notes or until any earlier date that the
Company notifies the Agents as described in the next sentence, will
not contain any information that conflicts with the information
contained in the Registration Statement, including any document
incorporated by reference therein, the Prospectus and any
prospectus supplement deemed to be a part thereof that has not been
superseded or modified. If at any time following issuance of an
Company Free Writing Prospectus there occurs an event or
development as a result of which such Company Free Writing
Prospectus contained an untrue statement of a material fact or
omits 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, the Company will promptly notify
the Agents so that any use of such Company Free Writing Prospectus
may cease until it is amended or supplemented. The foregoing two
sentences do not apply to statements in or omissions from any
Company Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by
any Agent expressly for use therein.
(f) The
Company has not distributed and will not distribute, prior to the
later of the Settlement Date and the completion of the
Agents’ distribution of any Notes issued hereunder, any
offering material in connection with the offering and sale of those
Notes other than the Prospectus, the Pricing Supplement, any
preliminary Pricing Supplement, and any Company Free Writing
Prospectus reviewed and consented to by the applicable
Agents.
(g) The
financial statements included or incorporated by reference in the
Registration Statement present fairly the financial position of the
Company and subsidiaries as of the dates indicated and the results
of their respective operations for the periods specified; and said
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a basis which
is consistent in all material respects during the periods
involved;
(h) The
Company and its significant subsidiaries are validly organized and
existing corporations under the laws of their respective
jurisdictions of incorporation; and the Company and its significant
subsidiaries are duly authorized under statutes which regulate the
business of insurance or banking or the business of making loans or
of financing the sale of goods (commonly called "small loan laws,"
or "sales finance laws"), or are permitted under the general
interest statutes and related laws and court decisions to conduct
in the various jurisdictions in which they do business the
respective businesses therein conducted by them as described in the
Prospectus except where failure to be so authorized or permitted
will not have a
CHI99 4594812-7.021110.0014
material adverse effect on the
business or consolidated financial condition of the Company and its
subsidiaries taken as a whole;
(i) There
are no legal or governmental proceedings pending, other than those
referred to in the Prospectus, to which the Company or any of its
subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject, other than proceedings
which are not reasonably expected, individually or in the
aggregate, to have a material adverse effect on the consolidated
financial position, shareholders' equity or results of operations
of the Company and its subsidiaries taken as a whole; and, to the
best of the Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or threatened by
others;
(j) The
Notes have been duly authorized, and, when issued and delivered
pursuant to this Agreement and any Terms Agreement and the
Indenture will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the applicable
Indenture; the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered
by the Company and the Trustee and constitutes a valid and legally
binding instrument enforceable in accordance with its terms except
as the same may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting the
enforcement of creditors' rights or by general principles of
equity; and the Indenture conforms to the description thereof in
the Prospectus as originally filed with the SEC, and the Notes will
conform to the description thereof in the Prospectus as amended or
supplemented;
(k) The
issue and sale of the Notes and the compliance by the Company with
all of the provisions of the Notes, the Indenture, this Agreement
and any Terms Agreement 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 of the property or assets of the
Company or any of its subsidiaries pursuant to the terms of any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries may be bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject (except for
conflicts, breaches and defaults which would not, individually or
in the aggregate, be materially adverse to the Company and its
subsidiaries taken as a whole or materially adverse to the
transactions contemplated by this Agreement), nor will such action
result in any violation of the provisions of the Restated
Certificate of Incorporation, as amended, or the By-Laws of the
Company or any of its subsidiaries or any statute or order, rule or
regulation applicable to it, of any court or any Federal, State or
other regulatory authority or any other governmental body having
jurisdiction over it; and no consent, approval, authorization,
order, registration or qualification of or with any court or other
such regulatory authority or other governmental body is required
for the issue and sale of the Notes or the consummation of the
other transactions contemplated in this Agreement or any Terms
Agreement except the registration under the 1933 Act of the Notes,
the qualification of the Indenture under the Trust Indenture Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under State securities or Blue
Sky laws in connection with the purchase and distribution of the
Notes by the Agents;
CHI99 4594812-7.021110.0014
(l) The
Company and its subsidiaries taken as a whole have not sustained
since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus as amended or
supplemented any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree; and since the date of the
latest audited financial statements included or incorporated by
reference in the Prospectus as it may be amended or supplemented
there has not been any material change in the capital stock or long
term debt of the Company (except for changes resulting from the
purchase by the Company of its outstanding securities for sinking
fund purposes) or any material adverse change in the general
affairs or management, or the consolidated financial position,
shareholders' equity or results of operations of the Company and
its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented;
and
(m) KPMG
is an independent registered public accounting firm as required by
the 1933 Act and the applicable rules and regulations thereunder
adopted by the SEC and the Public Company Accounting Oversight
Board (United States).
Any certificate signed by any
Authorized Officer of the Company and delivered to the Purchasing
Agent or to counsel for the Purchasing Agent in connection with an
offering of Notes or the sale of Notes to the Purchasing Agent as
principal shall be deemed a representation and warranty by the
Company to the Agents as to the matters covered thereby on the date
of such certificate and at each Representation Date subsequent
thereto.
All representations, warranties,
covenants and agreements of the Company contained in this Agreement
or in certificates of officers of the Company submitted pursuant
hereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the
Purchasing Agent or any Agent or any controlling person of the
Purchasing Agent or any Agent, or by or on behalf of the Company,
and shall survive each delivery of and payment for any of the
Notes.
VII.
(a) Each
acceptance by the Company of an offer for the purchase of Notes,
and each delivery of Notes to the Purchasing Agent pursuant to a
sale of Notes to the Purchasing Agent, shall be deemed to be an
affirmation that the representations and warranties of the Company
made to the Purchasing Agent and the Agents in this Agreement and
in any certificate theretofore delivered pursuant hereto are true
and correct at the time of such acceptance or sale, as the case may
be, and an undertaking that such representations and warranties
will be true and correct at the time of delivery to the Purchasing
Agent of the Note or Notes relating to such acceptance or sale, as
the case may be, as though made at and as of each such time (and it
is understood that such representations and warranties shall relate
to the Registration Statement, the Disclosure Package and the
Prospectus as amended and supplemented to each such
time).
(1) the
Company accepts a Terms Agreement requiring such updating
provisions;
CHI99 4594812-7.021110.0014
(2) the
Company files an Annual Report on Form 10-K or a Quarterly Report
on Form 10-Q with the SEC that is incorporated by reference into
the Prospectus;
(3) the
Company files a Current Report on Form 8-K required by Item 2.01 of
Form 8-K with the SEC that is incorporated by reference into the
Prospectus; or
(4) if
required by the Purchasing Agent or the Agents after the
Registration Statement, the Disclosure Package or the Prospectus
has been amended or supplemented (other than by an amendment or
supplement providing solely for interest rates, maturity dates or
other terms of Notes or similar changes or which relates to an
offering of securities other than the Notes),
The Company shall furnish or cause
to be furnished to the Purchasing Agent and the Agents a
certificate of an Authorized Officer dated the date specified in
the applicable Terms Agreement or dated the date of filing with the
SEC of such supplement or document or the date of effectiveness of
such amendment, as the case may be, in form satisfactory to the
Purchasing Agent and the Agents to the effect that the statements
contained in the certificate referred to in Section II(b) hereof
which was last furnished to the Purchasing Agent and the Agents are
true and correct as of the date specified in the applicable Terms
Agreement or at the time of such filing, amendment or supplement,
as the case may be, as though made at and as of such time (except
that such statements shall be deemed to relate to the Registration
Statement, the Disclosure Package and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a
certificate of the same tenor as the certificate referred to in
said Section II(b), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such
certificate.
(1) the
Company accepts a Terms Agreement requiring such updating
provisions;
(2) the
Company files an Annual Report on Form 10-K or a Quarterly Report
on Form 10-Q with the SEC that is incorporated by reference into
the Prospectus; or
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(3)
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if required by the Purchasing Agent or the
Agents after:
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(i) the
Company files a Current Report on Form 8-K required by Item 2.01 of
Form 8-K with the SEC that is incorporated by reference into the
Prospectus; or
(ii) the
Registration Statement, the Disclosure Package or the Prospectus
has been amended or supplemented (other than by an amendment or
supplement providing solely for interest rates, maturity dates or
other terms of Notes or similar changes or which relates to an
offering of securities other than the Notes),
CHI99 4594812-7.021110.0014
the Company shall furnish or cause
to be furnished forthwith to the Purchasing Agent and the Agents
and your counsel the written opinions of counsel to the Company,
dated the date specified in the applicable Terms Agreement or dated
the date of filing with the SEC of such supplement or document or
the date of effectiveness of such amendment, as the case may be, in
form and substance satisfactory to the Purchasing Agent and the
Agents, of the same tenor as the opinions referred to in
Section II(a)(1) hereof, but modified, as necessary, to relate
to the Registration Statement, the Disclosure Package and the
Prospectus as amended and supplemented to the time of delivery of
such opinion (including, if applicable, any free writing
prospectuses to be reflected in such opinion pursuant to the
provision of Section XIII below); or, in lieu of such opinion,
counsel last furnishing such opinion to the Purchasing Agent and
the Agents shall furnish the Purchasing Agent and the Agents with a
letter substantially to the effect that the Purchasing Agent and
the Agents may rely on such last opinion to the same extent as
though it was dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed to
relate to the Registration Statement, the Disclosure Package and
the Prospectus as amended and supplemented including, if
applicable, any free writing prospectuses to be reflected in such
letter pursuant to the provisions of Section XIII
below).
(1) the
Company accepts a Terms Agreement requiring such updating
provisions;
(2) the
Company files an Annual Report on Form 10-K or a Quarterly Report
on Form 10-Q with the SEC that is incorporated by reference into
the Prospectus; or
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(3)
|
if required by the Purchasing Agent or the
Agents after:
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(i) the
Company files a Current Report on Form 8-K required by Item 2.01 of
Form 8-K with the SEC that is incorporated by reference into the
Prospectus; or
(ii) the
Registration Statement or Prospectus has been amended or
supplemented to include additional financial information required
to be set forth or incorporated by reference into the Prospectus
under the terms of Item 11 of Form S-3 under the 1933
Act,
the Company shall cause KPMG to
furnish the Purchasing Agent and the Agents a letter, dated the
date specified in the applicable Terms Agreement or dated the date
of effectiveness of such amendment, supplement or document filed
with the SEC, as the case may be, in form satisfactory to the
Purchasing Agent and the Agents, of the same tenor as the portions
of the letter referred to in clauses (1) and (2) of Section II(c)
hereof but modified to relate to the Registration Statement and
Prospectus, as amended and supplemented to the date of such letter,
and of the same general tenor as the portions of the letter
referred to in clauses (3) and (4) of said Section II(c) with
such
CHI99 4594812-7.021110.0014
changes as may be necessary to
reflect changes in the financial statements and other information
derived from the accounting records of the Company; provided,
however, that if the Registration Statement or the Prospectus is
amended or supplemented solely to include financial information as
of and for a fiscal quarter, KPMG may limit the scope of such
letter to the unaudited financial statements included in such
amendment or supplement. If any other information included therein
is of an accounting, financial or statistical nature, the
Purchasing Agent and the Agents may request procedures be performed
with respect to such other information. If KPMG is willing to
perform and report on the requested procedures, such letter should
cover such other information. Any letter required to be provided by
KPMG hereunder shall be provided within 10 business days of the
filing of the Annual Report on Form 10-K or Quarterly Report on
Form 10-Q, as the case may be, within a reasonable time of a
request made pursuant to subparagraph (iii) hereof or on the date
specified in an applicable Terms Agreement.
VIII.
(a) The
Company agrees to indemnify and hold harmless the Purchasing Agent
and each Agent and each person who controls the Purchasing Agent or
any Agent within the meaning of either the 1933 Act or the 1934 Act
against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under
the 1933 Act, the 1934 Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or arise
out of or are based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, or arise out of or
are based upon any untrue statement or alleged untrue statement of
a material fact contained in the Disclosure Package (or any part
thereof) or the Prospectus or any amendment or supplement thereof,
or arise out of or are based upon any omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (in each
case, as determined in accordance with Rule 159 under the 1933
Act), and agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided,
however, that (i) the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance
upon and in conformity with written information furnished to the
Company by or on behalf of the Purchasing Agent or any Agent
specifically for inclusion in the R
