Exhibit 1.1
INTERNATIONAL LEASE FINANCE CORPORATION
ILFC NOTES, SERIES II
WITH MATURITIES OF 9 MONTHS OR MORE FROM DATE OF ISSUE
SELLING AGENT AGREEMENT
April 28, 2008
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Banc of America
Securities LLC
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Morgan Stanley & Co.
Incorporated |
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9 West 57th
Street
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1585 Broadway, 4th Floor |
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New York, New York
10019
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New York, New York 10036 |
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Citigroup Global
Markets Inc.
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UBS Securities LLC |
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388 Greenwich
Street
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677 Washington Boulevard |
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New York, New York
10013
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Stamford, Connecticut 06901 |
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Incapital LLC
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Wachovia Capital Markets, LLC |
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200 South Wacker
Drive
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301 S. College Street |
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Suite 3700
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Charlotte, NC 28202 |
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Chicago, Illinois
60606
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Merrill Lynch,
Pierce, Fenner & Smith
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Incorporated
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4 World Financial
Center, Floor 15
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New York, New York
10080
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Ladies and Gentlemen:
International Lease Finance
Corporation, a California corporation (the “ Company
”), proposes to issue and sell its ILFC Notes, Series II
(the “ Notes ”) with maturities of 9 months
or more from date of issue pursuant to the provisions of the
Indenture, dated as of August 1, 2006, and as supplemented
from time to time (the “ Indenture ”), between
the Company and Deutsche Bank Trust Company Americas, a New York
banking corporation, as trustee (the “ Trustee
”), as may be amended from time to time. The Notes shall have
the maturity ranges, interest rates and other terms set forth in
the Prospectus referred to below as it may be amended or
supplemented from time to time. The Notes will be issued, and the
terms thereof established, from time to time by the Company in
accordance with the Indenture.
Subject to the terms and conditions
contained in this Selling Agent Agreement (this “
Agreement ”), the Company hereby (1) appoints
each of you as an agent of the Company (individually, an “
Agent ” and collectively the “ Agents
”) for the purpose of soliciting and receiving offers to
purchase Notes from the Company and you hereby agree to use your
reasonable best efforts to solicit and receive 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 (2) 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 in Section IV(b)
below) relating to such sale in accordance with the provisions of
Section IV(b) hereof between the Company and Incapital
LLC (the “ Purchasing Agent ”), with the
Purchasing Agent purchasing such Notes as principal for resale to
others. This Agreement shall not be construed to create either an
obligation on the part of the Company to sell any Notes or an
obligation of any of the Agents to purchase Notes.
I.
The Company has filed with the
Securities and Exchange Commission (the “ Commission
”) an automatic shelf registration statement, as defined in
Rule 405 under the Securities Act of 1933, as amended (the
“ Securities Act ”), on Form S-3
(No. 333-136681) relating to, among other things, debt
securities and the offering thereof, from time to time, in
accordance with Rule 415 under the Securities Act, which
registration statement became effective upon filing with the
Commission. Such registration statement, including the exhibits
thereto and information otherwise deemed to be part of and included
in such registration statement pursuant to regulations under the
Securities Act, as amended to the date of this Agreement, is
hereinafter called the “ Registration Statement
”. The base prospectus filed as part of the Registration
Statement, in the form in which it most recently has been filed
with the Commission, is hereafter called the “ Base
Prospectus ”. The Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the “ Trust
Indenture Act ”). The Company has prepared or will
promptly prepare for filing with, or transmitted for filing to, the
Commission, pursuant to Rule 424 under the Securities Act, a
prospectus supplement (the “ Prospectus Supplement
”) for the purpose of supplying information in respect of the
public offering of the Notes. The Base Prospectus, as supplemented
by the Prospectus Supplement, is hereinafter called the “
Prospectus ”. Any reference herein to the Registration
Statement or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed or furnished under
the Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), on or before the date of this
Agreement or the date of the Prospectus, as the case may be; and
any reference herein to the terms “amend”,
“amended”, “amendment”,
“supplement” or “supplemented” with respect
to the Registration Statement or the Prospectus shall be deemed to
refer to and include (i) the filing or furnishing of any
document under the Exchange Act after the date of this Agreement or
the date of the Prospectus, as the case may be, deemed to be
incorporated therein by reference and (ii) with respect to the
Registration Statement, information otherwise deemed to be part of
and included in the Registration Statement pursuant to regulations
under the Act after the date of this Agreement.
II.
Your obligations hereunder are
subject to the following conditions:
(a) (i) the Prospectus, and
any supplement thereto, has been filed in a manner and within the
time period required by Rule 424(b), (ii) the Final Term
Sheet contemplated by Section III(k) hereof, and any
other material required to be filed by the Company pursuant to
Rule 433(d) under the Act, shall have been filed with the
Commission within the applicable time periods prescribed for such
filings by Rule 433, and (iii) no stop order suspending
the effectiveness of the Registration Statement, or any notice
objecting to its use, shall be in effect,
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and no
proceedings for such purpose shall be pending before or, to the
Company’s knowledge, threatened by the Commission.
(b) On the date hereof, you
shall have received a favorable opinion of the General Counsel of
the Company, dated the date hereof, to the effect that:
(i) the
Company is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction in
which the ownership or leasing of its property or the conduct of
its business requires it to be so qualified; provided ,
however , that the Company may not be so qualified in
certain jurisdictions, the effect of which would not result in
material adverse effect on the Company;
(ii) no
subsidiary of the Company nor all of the subsidiaries of the
Company taken as a whole is a “significant subsidiary”
as defined in Rule 1-02 of Regulation S-X promulgated
under the Exchange Act; and
(iii) to
the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries of a character required to
be disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus.
(c) On the date hereof, you
shall have received a favorable opinion of
O’Melveny & Myers LLP, special counsel for the
Company, dated the date hereof, to the effect that:
(i) the
Company has the corporate power to own its properties and conduct
its business as described in the Prospectus;
(ii) the
Indenture has been duly authorized by all necessary corporate
action on the part of the Company, has been duly executed and
delivered by the Company and is a legally valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to
or affecting creditors’ rights generally (including, without
limitation, fraudulent conveyance laws), and by general principles
of equity including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at
law, and, if applicable, is subject to provisions of law which may
require that a judgment for money damages rendered by a court in
the United States be expressed in United States dollars;
(iii) the
Notes have been duly authorized by all necessary corporate action
on the part of the Company and when the final terms of a particular
Note and of its issuance and sale have been duly established in
conformity with the Indenture, and when such Note has been duly
executed, authenticated and issued in accordance with the
provisions of the Indenture and upon payment for and delivery of
the Notes in accordance with the terms of this Agreement and the
applicable Terms Agreement, will be legally 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 may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting
creditors’ rights generally (including, without
limitation,
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fraudulent conveyance laws), and by general principles of equity
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at
law, and, if applicable, is subject to provisions of law which may
require that a judgment for money damages rendered by a court in
the United States be expressed in United States dollars;
(iv) the
Indenture has been duly qualified under the Trust Indenture
Act;
(v) this
Agreement (and if the opinion is furnished on a Settlement Date,
the applicable Terms Agreement) has been duly authorized by all
necessary corporate action on the part of the Company and has been
duly executed and delivered by the Company;
(vi) no
consent, authorization, order or approval of any California, New
York or federal court or governmental agency or body is required on
the part of the Company for the execution and delivery of this
Agreement or for the issuance and sale of the Notes, except such as
have been obtained under the Securities Act, the Trust Indenture
Act and such as may be required under the Blue Sky or securities
laws of any jurisdiction and such other approvals (specified in
such opinion) as have been obtained;
(vii) neither
the execution and delivery of the Indenture nor the issuance of the
Notes will violate, result in a breach by the Company of, or
constitute a default under, the Articles of Incorporation or Bylaws
of the Company or the terms of any of the agreements, instruments,
contracts, orders, injunctions or judgments identified to such
counsel in an Officer’s Certificate of the Company (a copy of
which will be delivered with the opinion of such counsel) as
agreements, instruments, contracts, orders, injunctions or
judgments binding on the Company which have provisions relating to
the issuance by the Company of debt securities and the violation
of, breach of or default under which would have a material adverse
effect on the Company and its subsidiaries considered as a whole,
except that no opinion need be expressed regarding the effect, if
any, of the issuance of the Notes upon the Company’s
compliance with any of the financial covenants contained in any of
said agreements, instruments, contracts, orders, injunctions or
judgments;
(viii) the
Registration Statement has become effective under the Securities
Act and, to such counsel’s knowledge, no stop order
suspending the effectiveness of the Registration Statement, or any
notice objecting to its use, has been issued or threatened by the
Commission;
(ix) the
Registration Statement, on the date it was filed, appeared on its
face to comply in all material respects with the requirements as to
form for registration statements on Form S-3 under the Securities
Act and the rules and regulations of the Commission thereunder,
except that no opinion need be expressed concerning the financial
statements and other financial information contained or
incorporated by reference therein;
(x) the
documents incorporated by reference into the Prospectus appear on
their face to comply in all material respects with the requirements
as to form for reports on Form 10-K, Form 10-Q and Form 8-K, as the
case may be, under the Exchange Act, and the rules and regulations
thereunder in effect at the respective dates of their filing,
except that no opinion need
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be
expressed concerning the financial statements and other financial
information contained or incorporated by reference therein;
(xi) the
statements in the Prospectus under the captions “Description
of Debt Securities” and “Description of the
Notes”, insofar as such statements constitute a summary of
provisions of the Indenture or the Notes, fairly present the
information required therein by Form S-3;
(xii) the
Company is not, and upon the issuance of the Notes and the
application of proceeds therefrom as described in the Prospectus
will not become, an investment company required to register under
the Investment Company Act of 1940, as amended;
(xiii) such
counsel does not know of any contract or other document of a
character required to be filed as an exhibit to the Registration
Statement which is not filed as required; and
(xiv) the
execution and delivery of this Agreement, the purchase and sale of
the Notes in accordance with the terms and provisions of this
Agreement and the consummation of the transactions contemplated
under this Agreement, the Indenture and the Notes will not violate
any current federal or State of California or New York law, rule or
regulation that such counsel has, in the exercise of customary
professional diligence, recognized as applicable to the Company or
to the transactions of the type contemplated by this Agreement or
the Indenture, except that such counsel need express no opinion
regarding any federal securities laws, any Blue Sky or state
securities laws or the provisions of Section VI of this
Agreement.
(xv) The
statements contained in the Prospectus under the caption
“Certain U.S. Federal Income Tax Considerations”
insofar as they purport to describe the material tax consequences
under the U.S. federal income tax laws of an investment in the
Notes, constitute a fair summary thereof in all material
respects.
Such counsel may state that, as
counsel to the Company, such counsel reviewed the Registration
Statement, the Disclosure Package (as defined below), the
Prospectus and the documents incorporated therein by reference and
participated in conferences with representatives of the Agents and
representatives of the Company, its independent public accountants
and counsel of the Agents at which the contents of the Registration
Statement, the Disclosure Package, the Prospectus and the documents
incorporated therein by reference and related matters were
discussed. (For purposes of this Agreement, the term “
Disclosure Package ” shall mean (i) the
Prospectus, as amended and supplemented as of the Applicable Time,
as defined in Section V(i) hereof, (ii) any
Permitted Free Writing Prospectus as defined in
Section III(k) hereof, and (iii) any other
“free writing prospectus”, as defined in Rule 405
under the Securities Act (“ Free Writing Prospectus
”), including any “issuer free writing
prospectus”, as defined in Rule 433 under the Securities
Act (“ Issuer Free Writing Prospectus ”), that
the parties hereto shall hereafter expressly agree in writing to
treat as part of the Disclosure Package.)
Such counsel may state that the
purpose of such counsel’s professional engagement was not to
establish or confirm factual matters set forth in the Registration
Statement, the Disclosure Package or the Prospectus and such
counsel has not undertaken any obligation to verify
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independently any of the factual matters set forth in the
Registration Statement, the Disclosure Package or the Prospectus.
Such counsel may state that, moreover, many of the determinations
required to be made in the preparation of the Registration
Statement, the Disclosure Package and the Prospectus involve
matters of a non-legal nature.
Subject to the foregoing, such
counsel shall confirm to you that, on the basis of the information
such counsel gained in the course of performing the services
referred to above, nothing came to such counsel’s attention
that caused it to believe that (i) the Registration Statement,
at its effective date (or if later, the date the Company’s
latest Annual Report on Form 10-K was filed with the
Commission) and, if such counsel is providing a legal opinion
pursuant to a Terms Agreement, on the Effective Date (as defined in
Section V(a) hereof), pursuant to Rule 430B(f)(2)
under the Securities Act, of the part of the Registration Statement
relating to the offering of the Notes subject to such Terms
Agreement for purposes of liability of any Agent under
Section 11 of the Securities Act, contained any untrue
statement of a material fact, or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (ii) the Disclosure Package, as of the
date of such opinion (or, if such opinion is to be delivered
pursuant to the last sentence of Section II or the
penultimate paragraph of Section V in accordance with
an agreement between the Company and the Purchasing Agent, as set
forth in the applicable Terms Agreement, at the Applicable Time)
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 light of the circumstances under which they
were made, not misleading and (iii) the Prospectus on the date
of the Prospectus Supplement included in the Prospectus, as of the
Applicable Time and on the date of the opinion, 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 light of the circumstances under which they
were made, not misleading; provided , however , that
such counsel need not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement, the Disclosure Package or the Prospectus
(except for the statements described in paragraphs (xi)
and (xv) above), and such counsel need not express any
belief (A) except as specifically stated in
paragraph (x) above, with respect to any document filed
by the Company under the Exchange Act, whether before or after an
Effective Date, except to the extent that such document is a
document incorporated by reference (1) in the Registration
Statement as of its effective date (or if later, the date the
Company’s latest Annual Report on Form 10-K was filed with
the Commission) and, if such counsel is providing a legal opinion
pursuant to a Terms Agreement, as of the Effective Date, pursuant
to Rule 430B(f)(2) under the Securities Act, of the part of
the Registration Statement relating to the offering of the Notes
subject to such Terms Agreement for purposes of liability of any
Agent under Section 11 of the Securities Act, read together
with the Registration Statement and considered as a whole as of
such date, or (2) in the Prospectus as of the date of the
Prospectus Supplement included in the Prospectus, as of the
Applicable Time (if applicable) or on the date of the opinion;
(B) with respect to the Form T-1 filed by the Trustee in
connection with the Registration Statement; (C) with respect
to the financial statements or other financial or accounting data
contained in or omitted from the Registration Statement, the
Disclosure Package or the Prospectus; or (D) with respect to
the representations and warranties contained in the exhibits to the
Registration Statement or in the exhibits to the documents
incorporated by reference in the Registration Statement or the
Prospectus.
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(d) On the date hereof,
PricewaterhouseCoopers LLP shall have furnished to you a letter
(which may refer to a letter or letters previously delivered to
you), dated as of the date hereof, in form and substance
satisfactory to you, stating in effect that:
(i) They
are an independent registered public accounting firm with respect
to the Company and its subsidiaries within the meaning of the
Securities Act and the applicable rules and regulations thereunder
adopted by the Commission;
(ii) In
their opinion, the financial statements and financial statement
schedules audited by them and included or incorporated by reference
in the Registration Statement or the Prospectus comply as to form
in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the
related rules and regulations thereunder adopted by the
Commission;
(iii) The
unaudited selected financial information with respect to the
consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6
of the Company’s Annual Report on Form 10-K for the most
recent fiscal year agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial
statements for five such fiscal years which were included or
incorporated by reference in the Company’s Annual Reports on
Form 10-K for such fiscal years;
(iv) On
the basis of limited procedures, not constituting an audit in
accordance with generally accepted auditing standards, consisting
of a review, in accordance with standards established under
Statement on Auditing Standards No. 100, of the unaudited
condensed consolidated statements of income, consolidated balance
sheets, and consolidated statements of cash flows, included in the
Prospectus and/or included in the Company’s quarterly report
on Form 10-Q incorporated by reference into the Prospectus, a
reading of the latest available interim financial statements of the
Company and its subsidiaries, inspection of the minute books of the
Company and its subsidiaries since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters and
such other inquiries and procedures as may be specified in such
letter, nothing came to their attention that caused them to believe
that:
(A)
(i) any unaudited financial statements included and/or
incorporated by reference in the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the Exchange Act and the related rules and
regulations adopted by the Commission, or (ii) any material
modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus or
included in the Company’s Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any
other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding
items in the unaudited
7
consolidated
financial statements from which such data and items were derived,
and any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
or incorporated by reference in the Company’s Annual Report
on Form 10-K for the most recent fiscal year;
(C) any
unaudited financial statements which were not included in the
Prospectus but from which were derived unaudited condensed
financial statements included in the Prospectus and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in clause (B) were not determined
on a basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company’s Annual Report on Form 10-K for the most recent
fiscal year;
(D) any
unaudited pro forma consolidated condensed financial statements
included or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the published
rules and regulations thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of those statements;
(E) as
of a specified date not more than five days prior to the date of
such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise
of options and stock appreciation rights, upon earn-outs of
performance shares and upon conversions of convertible securities,
in each case which were outstanding on the date of the latest
balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or as of the end of the latest
period for which financial statements are available, any decreases
in consolidated net assets, in each case as compared with amounts
shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus as amended and
supplemented discloses have occurred or may occur or which are
described in such letter; and
(F) for
the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to a
specified date not more than five days prior to the date of such
letter, there were any decreases in consolidated net revenues or
the total or per share amounts of income before extraordinary items
or net income, in each case as compared with the comparable period
of the preceding year, except in each case for increases or
decreases which the Prospectus as amended and supplemented
discloses have occurred or may occur or which are described in such
letter; and
(v) In
addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other
procedures referred to in paragraph (iv) above, they
have carried out certain specified procedures, not constituting an
audit in accordance with generally accepted
8
auditing
standards, with respect to certain amounts, percentages and
financial information specified by the Agents which are derived
from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits
and schedules to, the Registration Statement specified by the
Agents or in documents incorporated by reference in the Prospectus
specified by the Agents, and have compared certain of such amounts,
percentages and financial information with the accounting records
of the Company and its subsidiaries and have found them to be in
agreement.
All references to the Prospectus in
this paragraph (d) shall be deemed to refer to the
Prospectus (including the documents incorporated by reference
therein) as of the applicable date referred to in the last sentence
of Section II and the last paragraph of
Section V hereof and to the Prospectus as amended or
supplemented (including the documents incorporated by reference
therein) as of the date of the amendment, supplement, incorporation
or the Settlement Date relating to the Terms Agreement requiring
the delivery of such letter under the last sentence of
Section II and the last paragraph of
Section V hereof.
(e) On the date hereof, you
shall have received a favorable opinion of Morgan, Lewis &
Bockius LLP, counsel for the Agents, dated the date hereof with
respect to the issuance and sale of the Notes, the Indenture, the
Registration Statement, the Disclosure Package, the Prospectus and
other related matters as you may reasonably require, and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass on such
matters.
(f) On the date hereof, you
shall have received a certificate of the secretary or assistant
secretary of the Company as to (i) the Articles of
Incorporation of the Company, (ii) the Bylaws of the Company
and (iii) the resolutions authorizing the issuance and sale of
the Notes and certain related matters.
(g) On the date hereof, the
Company shall have furnished to you a certificate of the Company,
signed by the Chairman of the Board, the President or a Vice
President and the principal financial or accounting officer of the
Company, dated the date hereof, to the effect that the signers of
such certificate have carefully examined the Registration
Statement, the Disclosure Package, the Prospectus and this
Agreement and that:
(i) the
representations and warranties of the Company in this Agreement are
true and correct in all material respects on and as of the date
hereof, and the Company has, in all material respects, complied
with all the agreements and satisfied all the conditions on its
part to be performed or satisfied as a condition to your obligation
as Agents to solicit offers to purchase the Notes, or your
obligation to purchase Notes pursuant to any Terms Agreement;
(ii) no
stop order suspending the effectiveness of the Registration
Statement or any notice objecting to its use has been issued and no
proceedings for that purpose have been instituted or, to the
Company’s knowledge, threatened; and
(iii) since
the date of the most recent financial statements included in the
Prospectus, there has been no material adverse change in the
condition (financial or other),
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earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in the
ordinary course of business, except as set forth or contemplated in
the Prospectus.
(h) The Company shall have
furnished you such further information, certificates and documents
as you may reasonably request.
The obligations of the Purchasing
Agent to purchase Notes as principal, both under this Agreement and
under any Terms Agreement, and your obligations as Agents to
solicit offers to purchase Notes under this Agreement, are subject
to the conditions that (i) the representations and warranties
on the part of the Company contained in this Agreement are accurate
as of the date hereof, as of each Effective Date, as of each date
of filing of any document incorporated by reference in the
Registration Statement, as of the date any supplement to the
prospectus is filed with the Commission, as of each date on which
the Company accepts an offer to purchase Notes (including any
purchase by the Purchasing Agent as principal, pursuant to a Terms
Agreement or otherwise), and as of each date the Company issues and
sells Notes to you; (ii) the statements of the Company made in
any certificates pursuant to the provisions hereof are accurate;
(iii) the Company has performed its obligations hereunder; and
(iv) no stop order suspending the effectiveness of the
Registration Statement, or any notice objecting to its use, shall
have been issued, and no proceedings for such purpose shall be
pending before or threatened by the Commission. Further, if so
agreed upon by the Company and the Agents, as indicated in the
applicable Terms Agreement, the Purchasing Agent’s
obligations hereunder and under such agreement shall be subject to
such of the additional conditions set forth in clauses (b) ,
(c) , (d) , and (g) above, but modified to
relate to the Registration Statement and Prospectus as amended or
supplemented to the date of delivery of the certificate, opinion or
letter, as the case may be, called for by such conditions, each of
which such agreed conditions shall be met on the corresponding
Settlement Date.
If any of the conditions specified in
this Section II shall not have been fulfilled in all
material respects when and as provided in this Agreement, or if any
of the opinions and certificates mentioned above or elsewhere in
this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to you and your counsel, this
Agreement and all of your obligations hereunder may be canceled at
any time by you. Notice of such cancellation shall be given to the
Company in writing or by telephone or telecopy confirmed in
writing.
III.
In further consideration of your
agreements herein contained, the Company covenants as
follows:
(a) To furnish to you, without
charge, a copy of (i) the Indenture, (ii) the resolutions
of the Board of Directors (or Executive Committee) of the Company
authorizing the issuance and sale of the Notes, certified by the
Secretary or Assistant Secretary of the Company as having been duly
adopted, (iii) the Registration Statement including exhibits
but not including documents incorporated by reference therein, and
(iv) so long as delivery of a prospectus supplement is
required under the Act in connection with offers, solicitation of
offers to purchase, or sales of the Notes, as many copies of the
Prospectus, any documents incorporated by reference
10
therein
and any supplements and amendments thereto and any Issuer Free
Writing Prospectus as you may reasonably request.
(b) Prior to the termination of
the offering of the Notes, the Company will not file any amendment
of the Registration Statement (other than as a result of a filing
under the Exchange Act) or supplement to the Prospectus unless the
Company has furnished you with copies for your review prior to
filing and will not file any such proposed amendment or supplement
to which you reasonably object. Subject to the foregoing sentence,
the Company will cause each supplement to the Prospectus to be
timely filed (or transmitted for filing) with the Commission as
required pursuant to Rule 424. The Company will promptly
advise you (i) when each supplement to the Prospectus shall
have been filed (or transmitted for filing) with the Commission
pursuant to Rule 424, (ii) when any amendment of the
Registration Statement shall have become effective, (iii) of
any request by the Commission for any amendment of the Registration
Statement or amendment of or supplement to the Prospectus or the
Disclosure Package or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose or of any notice
objecting to the use of the Registration Statement, including any
notice pursuant to Rule 401(g)(2) and (v) of the receipt
by the Company of any notification with respect to the suspension
of the qualification of the Notes for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose.
The Company will use its best efforts to prevent the issuance of
any such stop order or the occurrence of any such suspension and,
upon such issuance, occurrence or notice of objection, to obtain as
soon as possible the withdrawal of such stop order or relief from
such occurrence or objection, including, if necessary, by filing an
amendment to the Registration Statement or a new registration
statement and using its best efforts to have such amendment or new
registration statement declared effective as soon as
practicable.
(c) The Company will prepare,
with respect to any particular tranche of 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, subject to
the first sentence of Section III(b) , will file such
Pricing Supplement with the Commission pursuant to Rule 424(b)
under the Securities 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.
(d) If there occurs an event or
development as a result of which, prior to the delivery of the
Pricing Supplement in respect of an offering of a particular
tranche of Notes to the Agents, the Disclosure Package relating to
such Notes would include an untrue statement of a material fact, or
would omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances then
prevailing, not misleading, the Company promptly will
(i) notify the Agents, including stating whether any use of
the Disclosure Package should cease until it is amended or
supplemented to correct such statement or omission (and, if so
notified by the Company, the Agents shall forthwith suspend using
the Disclosure Package as then amended or supplemented),
(ii) subject to the first sentence of
Section III(b) and the first sentence of
Section III(k) , prepare an amendment or supplement to
the Disclosure Package and, if applicable, file with the Commission
an amendment or supplement to the Disclosure Package, which
will
11
correct
such statement or omission, and (iii) supply any supplemented
Disclosure Package to you in such quantities as you may reasonably
request.
(e) To furnish you copies of
each amendment to the Registration Statement and of each amendment
and supplement to the Prospectus in such quantities as you may from
time to time reasonably request; and if at any time when the
delivery of a Prospectus shall be required by law in connection
with sales of any of the Notes (including the circumstances where
such requirement may be satisfied pursuant to Rule 172),
either (i) any event shall have occurred as a result of which
the Prospectus as then amended or supplemented would include any
untrue statement of a material fact, or omit to state any material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or
(ii) for any other reason it shall be necessary to amend the
Registration Statement or amend or supplement the latest
Prospectus, as then amended or supplemented or to file under the
Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Securities Act or the
Exchange Act or the respective rules thereunder, the Company will
(A) notify you to suspend the solicitation of offers to
purchase Notes and if notified by the Company, you shall forthwith
suspend such solicitation and cease using the Prospectus as then
amended or supplemented and (B) (1) subject to the first
sentence of Section III(b) , promptly prepare and file
with the Commission such document incorporated by reference in the
Prospectus or an amendment or supplement to the Registration
Statement or the Prospectus or new registration statement which
will correct such statement or omission or effect such compliance,
(2) use its best efforts to have any amendment to the
Registration Statement or new registration statement become
effective as soon as practicable in order to avoid any disruption
in the use of the Prospectus and (3) will provide to you
without charge a reasonable number of copies of such amended or
supplemented Prospectus or prospectuses included in a new
registration statement, which, if satisfactory to you in all
respects, you shall use thereafter. Unless the Company is then
subject to an obligation to deliver Notes to the Purchasing Agent
as principal pursuant to a Terms Agreement, the Company shall not
be required to comply with the provisions of clause (B) of
this Section III(e) during any period of time
(i) the Agents shall have suspended solicitation of offers to
purchase Notes and (ii) the Agents shall not then hold any
Notes as principal purchased from the Purchasing Agent (or, in the
case of the Purchasing Agent, from the Company) to the time the
Company determines that solicitation of purchasers of Notes should
be resumed or shall subsequently agree to the purchase of Notes by
the Purchasing Agent as principal.
(f) To endeavor to qualify such
Notes for offer and sale under the securities or Blue Sky laws of
such jurisdictions as you shall reasonably request and to pay all
reasonable expenses (including fees and disbursements of counsel)
in connection with such qualification and in connection with the
determination of the eligibility of such Notes for investment under
the laws of such jurisdictions as you may designate;
provided , that , in connection therewith the Company
shall not be required to qualify as a foreign corporation to do
business, or to file a general consent to service of process, in
any jurisdiction.
(g) The Company will make
generally available to its security holders as soon as practicable
earning statements that satisfy the provisions of
Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering twelve month
periods beginning, in each case, not later than the first day of
the Company’s fiscal quarter next following each Effective
Date of the Registration Statement with respect to each sale of
Notes.
12
(h) (i) If the Company and
the Purchasing Agent mutually agree to list Notes on any stock
exchange (a “ Stock Exchange ”), to use its
reasonable efforts, in cooperation with the Purchasing Agent, to
cause such Notes to be accepted for listing on any such Stock
Exchange, in each case as the Company and the Purchasing Agent
shall deem to be appropriate. In connection with any such agreement
to list Notes on a Stock Exchange, the Company shall use its
reasonable efforts to obtain such listing promptly and shall
furnish any and all documents, instruments, information and
undertakings that may be reasonably necessary or advisable in order
to obtain and maintain the listing.
(ii) So
long as any Note remains outstanding and listed on a Stock
Exchange, if the Registration Statement or the Prospectus as then
amended or supplemented would include any untrue statement of a
material fact or omit to state any material fact relating to any
matter described in the Prospectus the inclusion of which was
required by the listing rules and regulations of such Stock
Exchange on which any Notes are listed (the “ Listing
Rules ”) or by such Stock Exchange, to provide to the
Purchasing Agent information about the change or matter and,
subject to the first sentence of Section III(b) , to
amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the Listing Rules or as
otherwise requested by the Stock Exchange.
(iii) To
use reasonable efforts to comply with any undertakings given by it
from time to time to any Stock Exchange on which any Notes are
listed.
(i) To notify the Purchasing
Agent promptly in writing in the event that the Company does not
have a security listed on the New York Stock Exchange of equal rank
with or junior to the Notes.
(j) The Company will notify the
Agents immediately, and confirm such notice in writing, of any
change in the rating assigned by any nationally recognized
statistical rating organization, as such term is defined in
Rule 436(g)(2) under the Securities Act, to the Medium-Term
Note Program under which the Notes are issued (the “
Program ”) or any debt securities (including the
Notes) of the Company, or the public announcement by any nationally
recognized statistical rating organization that it has under
surveillance or review, with possible negative implications, its
rating of the Program or any such debt securities, or the
withdrawal by any nationally recognized statistical rating
organization of its rating of the Program or any such debt
securities.
(k) The Company hereby agrees
that, until each applicable Agent agrees otherwise in writing, no
communication that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a Free Writing
Prospectus has been, or will be, used by the Company, other than a
final pricing term sheet in the form of Annex A attached hereto,
prepared and to be filed by the Company pursuant to
Section III(l) and containing a description of the
final terms of a particular tranche of Notes being sold and the
offering thereof (the “ Final Term Sheet ”). Any
Free Writing Prospectus that the Company is permitted to use
pursuant to the preceding sentence of this
Section III(k) is hereinafter referred to as a “
Permitted Free Writing Prospectus .” The Company
agrees that it has complied and will comply, as the case may be,
with the filing and other requirements of Rules 164 and 433
applicable to any such Permitted Free Writing Prospectus. Each of
you, as Agents, severally and not jointly, hereby agree that, until
the
13
Company
agrees otherwise, no communication that would constitute a Free
Writing Prospectus has been, or will be, used by you in connection
with the offer and sale of the Notes, other than (i) one or
more written communications containing customary information
relating to the terms of the Notes that do not require the Company
to file any material pursuant to Rule 433(d) under the
Securities Act other than the Final Term Sheet and/or (ii) any
Permitted Free Writing Prospectus. Each of you, severally and not
jointly, also agrees not to issue any communication pursuant to
Rule 134 promulgated under the Securities Act with respect to
the Notes. Nothing in this Section III(k) shall be
deemed to require the approval by any Agent of any filings by the
Company under the Exchange Act.
(l) The Company agrees to
prepare and file a Final Term Sheet with respect to the sale of any
particular tranche of Notes and to file that Final Term Sheet
pursuant to Rule 433(d) promulgated under the Securities Act
within the time required by such Rule.
(m) If immediately prior to
August 16, 2009 (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 not 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 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) Solicitations as
Agent . You hereby agree, as Agents hereunder, to use your
reasonable best efforts to solicit and receive offers to purchase
Notes upon the terms and conditions set forth herein and in the
Prospectus and upon the terms communicated to you from time to time
by the Company. For the purpose of such solicitation you will use
the Prospectus as then amended or supplemented which has been most
recently distributed to you by the Company, and you will solicit
offers to purchase only as permitted or contemplated thereby and
herein and will solicit offers to purchase Notes only as permitted
by the Securities 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
Notes commencing at any time for any period of time or permanently.
Upon receipt of instructions (which may be given orally) and
confirmed in writing from the Company, you will as soon as
practicable, but in any event no later than one Business Day after
receipt of such instructions, suspend solicitation of offers to
purchase until such time as the Company has advised you that such
solicitation may be resumed.
You are authorized to solicit orders
for the Notes only in denominations of $1,000 or more (in multiples
of $1,000). You are not authorized to appoint subagents or to
engage the
14
service
of any other broker or dealer in connection with the offer or sale
of the Notes without the consent of the Company; provided ,
however , the Purchasing Agent may engage the service of any
other broker or dealer without the consent of the Company. The
Purchasing Agent will, however, on a periodic basis, provide the
Company with a listing of those brokers or dealers so engaged. In
addition, 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 offered through you
and may reject any proposed purchase of Notes as a whole or in
part. You shall have the right, in your 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
your agreements contained herein.
The Company agrees to pay the
Purchasing Agent, as consideration for soliciting the sale of the
Notes, a concession in the form of a discount equal to the
percentages of the principal amount of each Note sold not in excess
of the concession set forth in Exhibit A hereto (the “
Concession ”). Notwithstanding the foregoing, for
Notes that bear a zero interest rate and are issued at a
substantial discount from the principal amount payable at the
Maturity Date (a “ Zero-Coupon Note ”), the
Company agrees to pay the Purchasing Agent, as consideration for
soliciting the sale of the Zero-Coupon Notes, a Concession in the
form of a discount equal to the percentages of the initial offering
price of each Zero-Coupon Note sold not in excess of the Concession
set forth in Exhibit A hereto. The Purchasing Agent and the
other Agents will share the Concession in such proportions as they
may agree.
Except as provided in
Section IV(b) hereof, in soliciting offers to purchase
Notes from the Company, you are acting solely as agent for the
Company and not as principal. If acting on behalf of the Company on
an agency basis, you will make reasonable efforts to assist the
Company in obtaining performance by each purchaser whose offer to
purchase Notes has been accepted by the Company, but you shall not
have any liability to the Company in the event such purchase is not
consummated for any reason, other than to repay to the Company any
Concession with respect thereto.
(b) Purchases as
Principal . Each sale of Notes to an Agent as principal shall
be made in accordance with the terms of this Agreement and a
separate agreement, substantially in the form of Exhibit C
hereto, to be entered into on behalf of such Agent(s) by the
Purchasing Agent, which will provide for the sale of such Notes to,
and the purchase and reoffering thereof by, the Purchasing Agent as
principal. Each such separate agreement (which may be an oral
agreement and confirmed in writing as described below between the
Purchasing Agent and the Company) is herein referred to as a
“ Terms Agreement ”. A Terms Agreement may also
specify certain provisions relating to the reoffering of such Notes
by the Purchasing Agent. 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. Except pursuant to a
Terms Agreement, under no circumstances shall you be obligated to
purchase any Notes for your own account. Each Terms Agreement,
whether oral (and confirmed in writing which may be by facsimile
transmission) or in writing, 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 formula and maturity date or
dates of such Notes, the interest payment dates, if any, the price
to be paid to the Company for such Notes, the initial
15
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 or for optional redemption by the
Company and on what terms and conditions, and any other relevant
terms. Terms Agreements may take the form of an exchange of any
standard form of written telecommunication between the Purchasing
Agent and the Company.
In connection with the resale of the
Notes purchased, without the consent of the Company, you are not
authorized to appoint subagents or to engage the service of any
other broker or dealer, nor may you reallow any portion of the
discount paid to you by the Company in excess of the designated
reallowance portion; provided , however , that the
Purchasing Agent may engage the service of any other broker or
dealer without the consent of the Company. The Purchasing Agent
will however, on a periodic basis, provide the Company with a
listing of those brokers or dealers so engaged. Unless authorized
by the Purchasing Agent in each instance, each Agent agrees not to
purchase and sell Notes for which an order from a client has not
been received.
Each purchase of Notes by the
Purchasing Agent from the Company shall be at a discount from the
principal amount of each such Note on the date of issue not in
excess of the applicable Concession set forth in Exhibit A
hereto. Notwithstanding the foregoing, except as mutually agreed
upon by the parties, for Zero-Coupon Notes, each purchase of
Zero-Coupon Notes by the Purchasing Agent from the Company shall be
at a discount from the initial offering price of each such Note on
the date of issue not in excess of the applicable Concession set
forth in Exhibit A hereto.
(c) Public Offering
Price . 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,
with the exception of Zero-Coupon Notes. Zero-Coupon Notes shall be
sold to the public at a purchase price no greater than an amount,
expressed as a percentage of the principal face amount of such
Notes, equal to (i) the net proceeds to the Company on the
sale of such Notes, plus (ii) the Concession, plus
(iii) accrued interest, if any. Such purchase price shall be
set forth in the confirmation statement of the Selling Group (as
defined in Exhibit B) member responsible for such sale, and
delivered to the purchaser.
(d) Procedures .
Procedural details relating to the issue and delivery of, and the
solicitation of offers to purchase and payment for, the Notes,
whether under Section IV(a) or IV(b) of this
Agreement, are set forth in the Administrative Procedures attached
hereto as Exhibit B, as amended from time to time (the “
Procedures ”). The provisions of the Procedures shall
apply to all transactions contemplated hereunder unless otherwise
agreed to by you and the Company. You and the Company each agree to
perform the respective duties and obligations specifically provided
to be performed by each in the Procedures. The Procedures may only
be amended by written agreement of the Company and each of you, and
in the case of any amendment affecting the Trustee, after notice
to, and with the approval of, the Trustee.
(e) Availability of
Prospectus Upon Request . Upon the request of any person to
whom you sell or deliver Notes, you shall provide such person with
a copy of the Prospectus (as then amended or supplemented). You are
not authorized to give any information or to make any
16
representation not contained in the Prospectus or the documents
incorporated by reference or specifically referred to therein in
connection with the offer and sale of the Notes.
(f) Compliance With Laws
. The Purchasing Agent is aware, and has informed the other Agents,
that other than registering the Notes under the Securities Act, no
action has been or will be taken by the Company that would permit
the offer or sale of the Notes or possession or distribution of the
Prospectus or any other offering material relating to the Notes in
any jurisdiction where action for that purpose is required.
Accordingly, the Purchasing Agent agrees that it will observe all
applicable laws and regulations in each jurisdiction in or from
which it may directly or indirectly acquire, offer, sell or deliver
Notes or have in its possession or distribute the Prospectus or any
other offering material relating to the Notes, and the Purchasing
Agent will obtain any consent, approval or permission required for
the purchase, offer or sale by it of Notes under the laws and
regulations in force in any such jurisdiction to which it is
subject or in which it makes such purchase, offer or sale.
V.
The Company represents and warrants
to the Agents that as of the date hereof, as of each Effective Date
(as defined below), as of each date on which the Company accepts an
offer to purchase Notes (including any purchase by the Purchasing
Agent as principal, pursuant to a Terms Agreement or otherwise), as
of each date the Company issues and sells Notes to you, and as of
each date the Registration Statement or the Prospectus is amended
or supplemented or there is filed or furnished with the Commission
any document incorporated by reference into the Prospectus:
(a) (i) the Registration
Statement, as amended as of such time, the Prospectus as amended or
supplemented as of any such time, and the Indenture did or will
comply in all material respects with the applicable requirements of
the Securities Act, the Exchange Act and the Trust Indenture Act
and the respective rules thereunder; (ii) the Registration
Statement, as amended as of any such time, did not or will not
contain any untrue statement of a material fact, or omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and
(iii) the Prospectus, as amended or supplemented as of any
such time, did not and will not include any untrue statement of a
material fact, or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided ,
however , that the Company makes no representations or
warranties as to (x) that part of the Registration Statement
which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the
Trustee or (y) the information contained in or omitted from
the Registration Statement or Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by
or on behalf of the Agents specifically for inclusion in the
Registration Statement and the Prospectus, it being understood and
agreed that the only such information furnished by or on behalf of
any Agent is the information in third sentence of the third
paragraph, the fourth paragraph, second sentence of the sixth
paragraph and the seventh paragraph, each under the caption
“Supplemental Plan of Distribution” in the Prospectus
Supplement;
(b) subsequent to the respective
dates as of which information is given in the Registration
Statement and Prospectus, and except as set forth or contemplated
in the Registration Statement and the Prospectus, neither the
Company nor any of its subsidiaries has
17
incurred
any material liabilities or obligations, direct or contingent, nor
entered into any material transactions not in the ordinary course
of business, and there has not been any material adverse change in
the condition (financial or otherwise), business, prospects or
results of operations of the Company and its subsidiaries
considered as a whole;
(c) the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
with corporate power and authority to own its properties and
conduct its business as described in the Registration Statement and
the Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction in which the ownership or leasing of its property or
the conduct of its business requires it to be so qualified;
provided , however , that the Company may not be so
qualified in certain jurisdictions, the effect of which would not
have a material adverse effect on the Company;
(d) the Notes have been duly
authorized and, when the terms thereof have been established in
accordance with the Indenture and when executed, authenticated,
issued and delivered in the manner provided for in the Indenture
against payment therefor, will constitute legal, valid and binding
obligations of the Company, entitled to the benefits provided by
the Indenture and enforceable against the Company in accordance
with their terms, subject, as to enforcement of remedies, to
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors’ rights generally, general equitable
principles and the discretion of courts in granting equitable
remedies; the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, subject, as to enforcement of remedies,
to bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors’ rights generally, general equitable
principles and the discretion of courts in granting equitable
remedies; and the Indenture has been duly qualified under the Trust
Indenture Act; and the Indenture conforms and the Notes of any
particular issuance of Notes will conform in all material respects
to the descriptions thereof contained in the part of the
Registration Statement, as amended, and the Prospectus as amended
or supplemented that relate to such issuance of Notes;
(e) other than as set forth in
the Prospectus, there are no legal or governmental proceedings
pending or, to the Company’s knowledge, threatened to which
the Company or any of its subsidiaries is a party or to which any
property of the Company or any of its subsidiaries is subject,
which are of a character that are required to be disclosed in the
Prospectus which have not been properly disclosed therein;
(f) the Notes have been rated by
a “nationally recognized statistical rating agency” (as
that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act), including one or both of
Moody’s Investor Services (“ Moody’s
”) and Standard & Poor’s Ratings Services, a
division of The McGraw Hill Companies (“
Standard & Poor’s ”);
(g) this Agreement has been duly
authorized, executed and delivered by the Company;
18
(h) the financial statements
included in the Registration Statement and the Prospectus, together
with the related schedules and notes, present fairly, in all
material respects, the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement
of operations, stockholders’ equity and cash flows of the
Company and its consolidated subsidiaries for the periods
specified; said financial statements have been prepared in
conformity with generally accepted accounting principles (“
GAAP ”) applied on a consistent basis throughout the
periods involved. The supporting 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 in the
Prospectus present fairly, in all material respects, the
information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included
in the Registration Statement;
(i) as of the Applicable Time
(as defined below) with respect to the offering of any particular
tranche of Notes, the Disclosure Package, as then amended or
supplemented, did not, does not or will 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. The
preceding sentence does not apply to statements in or omissions
from the Disclosure Package based upon and in conformity with
written information furnished to the Company by any Agent
specifically for use therein. For purposes of this Agreement,
“ Applicable Time ” shall mean the time set
forth in the applicable Terms Agreement, or, if Notes are being
sold to you as principal and the Applicable Time is not specified
in the applicable Terms Agreement or if no Terms Agreement is
utilized in connection therewith, the Applicable Time shall mean
the time immediately prior to the time of the first sale
(including, without limitation, a contract of sale) of such Notes
or, with respect to Notes sold by any of you as agent, the
Applicable Time shall mean each time of sale (including, without
limitation, a contract of sale) of such Notes;
(j) (i) at the time of
filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant
to Sections 13 or 15(d) of the Exchange Act or form of
prospectus), (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c)) made any offer relating to the Notes in reliance
on the exemption in Rule 163, and (iv) as of the date of
the execution of this Agreement (with such date being used as the
determination date for purposes of this clause (iv)), the
Company was, is or will be (as the case may be) a “well-known
seasoned issuer” as defined in Rule 405. The
Registration Statement is an “automatic shelf registration
statement” as defined in Rule 405, that initially became
effective within three years of the date hereof. The Company has
not received from the Commission any notice pursuant to
Rule 401(g)(2) objecting to the use of the automatic shelf
registration form. The Company meets the requirements for use of
Form S-3 under the Securities Act. The registration statement, as
amended at the date of this Agreement, meets the requirements set
forth in Rule 415(a)(1)(x) under the Act and complies in all
other material respects with said Rule;
(k) (i) at the earliest
time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2)) of the Notes and
(ii) as of the execution of this Agreement (with such date
being
19
used as
the determination date for purposes of this clause (ii)), the
Company was not and is not an “ineligible issuer” as
defined in Rule 405 (“ Ineligible Issuer
”); and
(l) each Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Notes to
which such Issuer Free Writing Prospectus relates or until any
earlier date of which the Company provided or provides prior
notification to the Agents, did not, does not and will not include
any information that conflicted, conflicts or will conflict with
information contained in the Registration Statement, including any
document incorporated therein and any prospectus supplement deemed
to be a part thereof, in each case, that has not been superseded or
modified. The foregoing sentence does not apply to statements in or
omissions from the Disclosure Package based upon and in conformity
with written information furnished to the Company by any Agent
specifically for use therein, it being understood and agreed that
the only such information furnished by or on behalf of any Agent is
the information in third sentence of the third paragraph, the
fourth paragraph, second sentence of the sixth paragraph and the
seventh paragraph, each under the caption “Supplemental Plan
of Distribution” in the Prospectus Supplement.
Each acceptance by the Company of an
offer for the purchase of Notes and each issuance of Notes shall be
deemed an affirmation by the Company that the foregoing
representations and warranties are true and correct at the time, as
the case may be, of such acceptance or of such issuance, in each
case as though expressly made at such time. The representations,
warranties and covenants of the Company shall survive the execution
and delivery of this Agreement and the issuance and sale of the
Notes.
For purposes of this Agreement,
“ Effective Date ” shall mean each date and time
that any part of the Registration Statement and any post-effective
amendment or amendments thereto became or become effective,
including, without limitation, any amendment filed for the purposes
of complying with Section 10(a)(3) of the Securities Act
(whether such amendment was by post-effective amendment,
incorporated report filed pursuant to the Exchange Act, or form of
prospectus pursuant to Rule 424(b)), and each date and time
any part of the Registration Statement is deemed to be effective
pursuant to Rule 430B(f)(2) under the Securities Act.
Unless (i) the Company has
suspended the solicitation of offers to purchase Notes pursuant to
Section IV(a) and (ii) the Agents shall not hold
any Notes as principal purchased from the Purchasing Agent (or, in
the case of the Purchasing Agent, from the Company), each time the
Registration Statement or the Prospectus is amended or supplemented
(other than by an amendment or supplement providing solely for a
change in the interest rates offered on the Notes), or there is
filed or furnished by the Company with the Commission a
Form 10-K, Form 10-Q or Form 8-K that contains
financial information that is incorporated by reference into the
Prospectus pursuant to Section 13 of the Exchange Act, or, if
so indicated in the applicable Terms Agreement, the Company sells
Notes to you pursuant to a Terms Agreement, the Company shall
furnish the Agents forthwith a certificate, dated the date of the
effectiveness of such amendment, the date of filing or furnishing
of such supplement or document or the date of such sale, signed by
an executive officer of the Company, in substantially the form
previously delivered under Section II(g) , but modified
to relate to the Registration Statement and the Prospectus as
amended or supplemented, to such time;
20
Unless (i) the Company has
suspended the solicitation of offers to purchase Notes pursuant to
Section IV(a) and (ii) the Agents shall not hold
any Notes as principal purchased from the Purchasing Agent (or, in
the case of the Purchasing Agent, from the Company), each time the
Registration Statement or the Prospectus is amended or supplemented
(other than an amendment or supplement providing solely the terms
of an issue of Notes in a pricing supplement) or there is filed by
the Company with the Commission a Form 10-K or Form 10-Q
that is incorporated by reference into the Prospectus, or if so
agreed upon by the Company and the Agents, as indicated in the
applicable Terms Agreement, the Company sells Notes to you pursuant
to a Terms Agreement, the Company shall furnish or cause to be
furnished to you written opinions of counsel to the Company, dated
the date of the effectiveness of such amendment, the date of filing
of such supplement or document or the date of such sale, in
substantially the form previously delivered under
Sections II(b) and II(c) , but modified to
relate to the Registration Statement and the Prospectus as amended
or supplemented to the time of delivery of such
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