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Whirlpool Corporation
Notes
Due Nine Months or More From the Date of Issue
Selling Agency Agreement
February 25, 2008
Banc of America Securities LLC
9 West 57 th Street
New York, New York 10019
Greenwich Capital Markets, Inc.
600 Steamboat Road
Greenwich, CT 06830
As Representatives for the
Agents
Ladies & Gentlemen:
Whirlpool Corporation, a Delaware corporation (the
“Company”), confirms its agreement with each of you
with respect to the issue and sale by the Company of its Notes Due
Nine Months or More From the Date of Issue (the
“Notes”). The Notes will be issued under an indenture
(the “Indenture”) dated as of March 20, 2000, between
the Company and U.S. Bank, National Association (as successor to
Citibank, N.A.), as trustee (the “Trustee”). Unless
otherwise specifically provided for and set forth in a supplement
to the Prospectus referred to below, the Notes in minimum
denominations of $1,000 and in denominations exceeding such amount
by integral multiples of $1,000, will be issued only in fully
registered form and will have the maturities, annual interest rates
and, if appropriate, other terms set forth in such supplement to
the Prospectus. The Notes will be issued, and the terms thereof
established, in accordance with the Indenture and the Notes
Administrative Procedures attached hereto as Exhibit A (the
“Procedures”). The Procedures may only be amended by
written agreement of the Company and you after notice to, and with
the approval of, the Trustee. For the purposes of this Agreement,
the term “Agent” shall refer to any of you acting
solely in the capacity as agent for the Company pursuant to Section
2(a) and not as principal (collectively, the “Agents”),
the term “Purchaser” shall refer to one of you acting
solely as principal pursuant to Section 2(b) and not as agent, and
the term “you” shall refer to all of you collectively
whether at any time any of you is acting in both such capacities or
in either such capacity. In acting under this Agreement, in
whatever capacity, each of you is acting individually and not
jointly.
The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "Business Day" shall
mean any day other than a Saturday, a Sunday or a legal holiday or
a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Effective Date" shall mean each date that the Registration
Statement and any post-effective amendment or amendments thereto
(including the filing of any Annual Report on Form 10-K) became or
become effective. "Execution Time" shall mean the date and time
that this Agreement is executed and delivered by the parties
hereto. "Base Prospectus" shall mean the form of basic prospectus
relating to the Securities contained in the Registration Statement
at the Effective Date. "Issuer Free Writing Prospectus" has
the
meaning set forth in Rule 433 under the Act
(as defined below). "Free Writing Prospectus" has the meaning set
forth in Rule 405 under the Act. "Rule 415" and "Rule 424" refer to
such rules under the Act. "Time of Sale" shall mean the time
specified in the applicable Terms Agreement (as defined below)
related to a particular offering. "Disclosure Package" shall mean
the Base Prospectus, the Preliminary Prospectus Supplement (as
defined below), the applicable Pricing Supplement attached as
Schedule II hereto, the term sheet attached as Schedule III hereto,
and the Issuer Free Writing Prospectuses referred to in the Terms
Agreement for the applicable Notes, each as of the Time of Sale.
"Prospectus" shall mean the Base Prospectus, the Preliminary
Prospectus Supplement relating to the Notes and any final pricing
supplement or other supplement relating to the Notes in the form
first used to confirm sales pursuant to the Act. "Registration
Statement" shall mean the registration statement referred to in
Section 1(a) below, including incorporated documents, exhibits and
financial statements, as amended at the Execution Time and shall
also include the Preliminary Prospectus Supplement and any
applicable Pricing Supplement to the applicable Preliminary
Prospectus Supplement that is filed with the Commission (as defined
below) and deemed by virtue of Rule 430B under the Act to be part
of the Registration Statement. Any reference herein to the
Registration Statement, the Base Prospectus, the Preliminary
Prospectus Supplement, the Pricing Supplement 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 under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Base Prospectus,
the Preliminary Prospectus Supplement or the Prospectus, as the
case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration
Statement, the Base Prospectus, the Preliminary Prospectus
Supplement or the Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of
the Basic Prospectus, the Preliminary Prospectus Supplement or the
Prospectus, as the case may be, deemed to be incorporated therein
by reference.
1. Representations and
Warranties . The Company represents and
warrants to, and agrees with, each of you as set forth below in
this Section 1.
(a) The Company meets the requirements for use of
Form S-3 under the Securities Act of 1933, as amended (the
“Act”), and has filed with the Securities and Exchange
Commission (the “Commission”) a registration statement
on such Form (File Number: 333-131627), including a Base
Prospectus, which has become effective, for the registration under
the Act of debt securities (the “Securities”),
including the Notes. The Registration Statement is an
“automatic shelf registration statement,” as defined in
Rule 405 of the Act, that automatically became effective not more
than three years prior to the Execution Time; the Company has not
received from the Commission any notice pursuant to Rule 401(g)(2)
of the Act objecting to use of the automatic shelf registration
statement form. The Company has included in such registration
statement, or has filed or will file with the Commission pursuant
to the applicable paragraph of Rule 424(b) under the Act, a
supplement to the form of prospectus included in such registration
statement relating to the Notes and the plan of distribution
thereof (the “Preliminary Prospectus Supplement”). In
connection with the sale of Notes the Company proposes to file with
the Commission pursuant to the applicable paragraph of Rule 424(b)
under the Act further supplements to the Preliminary Prospectus
Supplement (each a “Pricing Supplement”), specifying
the interest rates, maturity dates and, if appropriate, other
similar terms of the Notes sold pursuant hereto or the offering
thereof.
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(b) As of the Execution Time, on the Effective Date,
when any supplement to the Prospectus is filed with the Commission,
as of the date of a Terms Agreement and at the date of delivery by
the Company of any Notes sold hereunder (a “Closing
Date”), (i) the Registration Statement, as amended as of any
such time, and the Prospectus, as supplemented as of any such time,
and the Indenture will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act of
1939, as amended (the “Trust Indenture Act”), and the
Securities Exchange Act of 1934, as amended (the “Exchange
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 supplemented as of any such time, will not
contain 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 (i) 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 (ii) the
information contained in or omitted from the Registration Statement
or the Prospectus (or any supplement thereto) in reliance upon and
in conformity with information furnished in writing to the Company
by or on behalf of any or all of you specifically for use in
connection with the preparation of the Registration Statement or
the Prospectus (or any supplement thereto).
(c) The Indenture has been duly authorized by the
Company and upon effectiveness of the Registration Statement was or
will have been duly qualified under the Trust Indenture Act and,
when duly executed and delivered in accordance with its terms by
each of the parties thereto, will constitute a valid and legally
binding agreement of the Company enforceable against the Company in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting the enforcement of creditors’ rights
and general equity principles relating to enforceability
(collectively, the “Enforceability
Exceptions”).
(d) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation of the transactions contemplated herein except such as
have been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the sale
of the Notes as contemplated by this Agreement and such other
approvals as have been obtained.
(e) As of the Time of Sale, the Disclosure Package
(i) will conform in all material respects to the requirements of
the Act and (ii) did not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading.
(f) The Company (including its agents and
representatives, other than the Agents and Purchasers) has not
made, used, prepared, authorized, approved or referred to and will
not prepare, make, use, authorize, approve or refer to or make any
offer relating to the Notes that would constitute a Free Writing
Prospectus other than (i) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the Act; or (ii)
other written communications approved in writing in advance by the
Agents and Purchasers including the term sheet attached to the
relevant Terms Agreement. To the extent required pursuant to Rule
433(d) under the Act, any such 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, complies or will comply in
all material respects with the requirements of the Act and has
been, or will be, filed with the Commission in accordance with the
Act (to the extent required pursuant to Rule 433(d) under the
Act).
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(g) 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 did not, does not and will
not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration
Statement, including any document incorporated by reference therein
and any prospectus supplement deemed to be a part thereof that has
not been superseded or modified.
(h) The Company has not distributed and will not
distribute, prior to the later of the settlement date and the
completion of the Agents’ and Purchasers’ distribution
of the Notes, any offering material in connection with the offering
and sale of the Notes other than the Disclosure Package, the
Prospectus, or any Issuer Free Writing Prospectus reviewed and
consented to by the Agents and Purchasers or included in the
Registration Statement.
(i) The Company is not an “ineligible
issuer,” as defined under the Act, at the times specified in
the Act in connection with the offering of the Notes.
(j) The documents incorporated by reference in the
Registration Statement, the Prospectus or the Disclosure Package,
when they were filed with the Commission conformed in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and none of such documents 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, in the light of the circumstances under which they were
made, not misleading; and any further documents so filed and
incorporated by reference in the Registration Statement, the
Prospectus or the Disclosure Package, when such documents become
effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and will not contain any
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, in the light of the circumstances under which
they were made, not misleading.
(k) At the time of filing the Registration
Statement, and at the time of the most recent amendment thereto, if
any, for the purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment, by a
report incorporated by reference therein filed pursuant to Section
13 or 15(d) of the Exchange Act or by a form of prospectus), the
Company was and is a “well known seasoned issuer” as
defined in Rule 405 of the Securities Act.
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(l) The financial statements
and the related notes thereto included or incorporated by reference
in the Registration Statement, the Disclosure Package and the
Prospectus comply in all material respects with the applicable
requirements of the Act and the Exchange Act, as applicable, and
present fairly the financial position of the Company and its
subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods
specified; such financial statements have been prepared in
conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods covered thereby, and the
supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to
be stated therein; the other financial information included or
incorporated by reference in the Registration Statement, the
Disclosure Package and the Prospectus has been derived from the
accounting records of the Company and its subsidiaries and presents
fairly the information shown thereby; and the pro forma financial information and the related notes thereto included or
incorporated by reference in the Registration Statement, the
Disclosure Package and the Prospectus have been prepared in
accordance with the applicable requirements of the Act and the
Exchange Act, as applicable, and the assumptions underlying
such pro forma financial information are
reasonable and are set forth in the Registration Statement, the
Disclosure Package and the Prospectus.
(m) Since the date of the most
recent financial statements of the Company included or incorporated
by reference in the Registration Statement, the Disclosure Package
and the Prospectus, (i) neither the Company nor any of the
Company’s significant subsidiaries (as defined in
Rule 1-02 of Regulation S-X), (the “Significant
Subsidiaries”) has sustained any loss or interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, that is material to the
Company, and its subsidiaries, considered as a whole and (ii) there
has not been any material change in the capital stock or long-term
debt of the Company and any of its subsidiaries, considered as a
whole, or any material adverse change, or any development involving
an impending material adverse change, in the general affairs,
financial position, stockholders' equity or results of operations
of the Company and its subsidiaries, taken as a whole, except in
each case as otherwise disclosed in the Registration Statement, the
Disclosure Package and the Prospectus.
(n) The Company and each of
its Significant Subsidiaries 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, the Disclosure Package and
the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or
leases properties and where the failure to so qualify would have a
material adverse effect on the business, financial position,
stockholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole (a “Material Adverse
Effect”).
(o) The Securities have been duly authorized by the
Company and, when duly executed, authenticated, issued and
delivered as provided in the Indenture and paid for as provided
herein, will be duly and validly issued and outstanding and will
constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms,
subject to the Enforceability Exceptions, and will be entitled to
the benefits of the Indenture.
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(p) This Agreement has been duly authorized,
executed and delivered by the Company.
(q) None of the execution or delivery of this
Agreement by the Company, the consummation of the transactions
contemplated hereby, the execution and delivery of the Indenture
and the issue and sale of the Notes by the Company, or compliance
by the Company with all of the provisions of this Agreement, the
Indenture and the Notes will conflict with or result in a breach or
violation of, or constitute a default under, or result in the
creation or imposition of any lien, encumbrance or charge upon any
property or asset of the Company or any of its subsidiaries under,
(i) the certificate of incorporation or by-laws of the Company or
any of its Significant Subsidiaries, (ii) any loan agreement,
indenture, mortgage, deed of trust or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by
which any of them is bound or to which any of their respective
properties is subject, or (iii) any law or any rule, regulation,
order or decree of any governmental agency or body or court having
jurisdiction over the Company or any of its subsidiaries or any of
their respective properties, except for such breaches, violations,
creations or impositions as would not have a Material Adverse
Effect.
(r) Except as described in the
Registration Statement, the Disclosure Package and the Prospectus,
there are no legal or governmental proceedings pending to which the
Company or any of its Significant Subsidiaries is a party or to
which any property of the Company or any of its Significant
Subsidiaries is subject other than litigation or other proceedings
which, in the opinion of the Company, will not in the aggregate
have a Material Adverse Effect; and, to the knowledge of the
Company's officers, no such proceedings are threatened or
contemplated by governmental authorities; and (i) there are no
current or pending legal, governmental or regulatory actions, suits
or proceedings that are required under the Act to be described in
the Registration Statement that are not so described in the
Registration Statement, the Disclosure Package and the Prospectus
and (ii) there are no statutes, regulations or contracts or other
documents that are required under the Act to be filed as exhibits
to the Registration Statement or described in the Registration
Statement or the Prospectus that are not so filed as exhibits to
the Registration Statement or described in the Registration
Statement, the Disclosure Package and the Prospectus.
(s) Ernst & Young LLP, who have certified
certain financial statements of the Company and its subsidiaries,
is an independent registered public accounting firm with respect to
the Company and its subsidiaries within the applicable rules and
regulations adopted by the Commission and the Public Accounting
Oversight Board (United States) and as required by the Securities
Act.
(t) The principal manufacturing and service
facilities referred to in the Company's Annual Report on Form 10-K
for the year ended December 31, 2007 under the caption
“Properties” are either owned or leased by the Company
or one of its subsidiaries and, if owned, are held under good
title, subject to no defects or encumbrances which would materially
interfere with the conduct of the business of the Company and its
subsidiaries considered as a whole and, if leased, are held under
valid and enforceable leases with no exceptions which would
materially interfere with such conduct.
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(u) The Company and its
subsidiaries maintain an effective system of “disclosure
controls and procedures” (as defined in Rule 13a-15(e) of the
Exchange Act) that is designed to ensure that information required
to be disclosed by the Company in reports that it files or submits
under the Exchange Act is recorded, processed, summarized and
reported within the time periods specified in the
Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated
and communicated to the Company’s management as appropriate
to allow timely decisions regarding required disclosure. The
Company and its subsidiaries have carried out evaluations of the
effectiveness of their disclosure controls and procedures as
required by Rule 13a-15 of the Exchange Act.
(v) The Company and its
subsidiaries maintain systems of “internal control over
financial reporting” (as defined in Rule 13a-15(f) of the
Exchange Act) that comply with the requirements of the Exchange Act
and have been designed by, or under the supervision of, their
respective principal executive and principal financial officers, or
persons performing similar functions, to provide reasonable
assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting principles,
including, but not limited to internal accounting controls
sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences. Except as disclosed in the
Registration Statement, the Disclosure Package and the Prospectus,
there are no material weaknesses in the Company’s internal
controls.
(w) There is and has been no
failure on the part of the Company or any of the Company’s
directors or officers, in their capacities as such, to comply with
any provision of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the
“Sarbanes-Oxley Act”), including Section 402 related to
loans and Sections 302 and 906 related to
certifications.
(x) (i) Except as disclosed in the Registration
Statement, the Prospectus, and the Disclosure Package, the Company
and its subsidiaries (a) are in compliance with any and all
applicable federal, state, local and foreign laws, rules,
regulations, requirements, decisions and orders relating to the
protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants
(collectively, “Environmental Laws”); (b) have received
and are in compliance with all permits, licenses, certificates or
other authorizations or approvals required of them under applicable
Environmental Laws to conduct their respective businesses, except
in the case of each of (a) and (b) above, for any such failure to
comply, or failure to receive required permits, licenses or other
authorizations or approvals, or cost or liability, as would not,
individually or in the aggregate, have a Material Adverse Effect;
and (c) have not received notice of any actual or potential
liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or
contaminants, and (ii) except as disclosed in the Registration
Statement, the Prospectus, and the Disclosure Package, there are no
costs or liabilities associated with Environmental Laws of or
relating to the Company or its subsidiaries.
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(y) The Company is not, and after giving effect to
the offering and sale of the Notes and the application of the
proceeds thereof as described in the Prospectus will not be, an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended.
2. Appointment of Agents;
Solicitation by the Agents of Offers to Purchase; Sales of Notes to
a Purchaser .
(a) Subject to the terms and conditions set forth
herein, the Company hereby authorizes each of the Agents to act as
its agent to solicit offers for the purchase of all or part of the
Notes from the Company.
On the basis of the representations and warranties,
and subject to the terms and conditions set forth herein, each of
the Agents agrees, as agent of the Company, to use its reasonable
efforts to solicit offers to purchase the Notes from the Company
upon the terms and conditions set forth in the Prospectus (and any
supplement thereto) and in the Procedures. Each Agent shall make
reasonable efforts to assist the Company in obtaining performance
by each purchaser whose offer to purchase Notes has been solicited
by such Agent and accepted by the Company, but such Agent shall
not, except as otherwise provided in this Agreement, have any
liability to the Company in the event any such purchase is not
consummated for any reason. Except as provided in Section 2(b),
under no circumstances will any Agent be obligated to purchase any
Notes for its own account. It is understood and agreed, however,
that any Agent may purchase Notes as principal pursuant to Section
2(b).
The Company reserves the right, in its sole
discretion, to instruct the Agents to suspend at any time, for any
period of time or permanently, the solicitation of offers to
purchase the Notes. Upon receipt of instructions from the Company,
the Agents will forthwith suspend solicitation of offers to
purchase Notes from the Company until such time as the Company has
advised them that such solicitation may be resumed.
Subject to the provisions of this Section and to the
Procedures, offers for the purchase of Notes may be solicited by an
Agent as agent for the Company at such time and in such amounts as
such Agent deems advisable. The Company may from time to time offer
Notes for sale otherwise than through an Agent and the Company may
solicit or accept offers to purchase Notes through any agent other
than an Agent.
(b) Subject to the terms and conditions set forth
herein, whenever the Company and any of you determine that the
Company shall sell Notes directly to any of you as principal, each
such sale of Notes shall be made in accordance with the terms of
this Agreement and, a supplemental agreement relating to such sale.
Each such supplemental agreement is herein referred to as a
“Terms Agreement.” Each Terms Agreement shall describe
the Notes to be purchased by the Purchaser pursuant thereto and
shall specify the principal amount of each such Note, the aggregate
principal amount of all such Notes, the maturity date of such
Notes, the rate at which interest will be paid on such Notes, the
dates on which interest will be paid on such Notes and the record
date with respect to each such payment of interest, the Closing
Date (as defined below) for such Notes, the place of delivery of
the Notes and payment therefor, the method of payment and any
requirements for the delivery of opinions of counsel, certificates
from the Company or its officers or a letter from the
Company’s registered independent public accountants, as
described in Section 6(b). Any such Terms Agreement may also
specify the period of time referred to in Section 4(n). Any written
Terms Agreement may be in the form attached hereto as Exhibit B.
The Purchaser’s commitment to purchase Notes shall be deemed
to have been made on the basis of the representation and warranties
of the Company herein contained and shall be subject to the terms
and conditions herein set forth.
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Delivery of the certificates for Notes sold to the
Purchaser pursuant to a Terms Agreement shall be made not later
than the Closing Date agreed to in such Terms Agreement, against
payment of funds to the Company in the net amount due to the
Company for such Notes by the method and in the form set forth in
the Procedures unless otherwise agreed to between the Company and
the Purchaser in such Terms Agreement.
Unless otherwise agreed to between the Company and
the Purchaser in a Terms Agreement, any Note sold to a Purchaser
(i) shall be purchased by such Purchaser at a price equal to 100%
of the principal amount thereof less a percentage equal to the
commission applicable to an agency sale of a Note of identical
maturity and (ii) may be resold by such Purchaser at varying prices
from time to time or, if set forth in the applicable Terms
Agreement and Pricing Supplement, at a fixed public offering price.
In connection with any resale of Notes purchased, a Purchaser may
use a selling or dealer group and may reallow any portion of the
discount or commission payable pursuant hereto to dealers or
agents.
3. Offering and Sale of
Notes .
(a) Each Agent shall communicate to the Company,
orally or in writing, each offer (unless previously rejected by
such Agent as provided below) to purchase Notes on terms previously
communicated by the Company to such Agent, and the Company shall
have the sole right to accept such offers to purchase Notes and may
refuse any proposed purchase of Notes in whole or in part for any
reason. Each Agent shall have the right, in its discretion
reasonably exercised, to reject any such offer received by it in
whole or in part. Each Agent and the Company agree to perform the
respective duties and obligations specifically provided to be
performed by them in the Procedures.
(b) The Agents and the Purchasers covenant with the
Company that they shall not use, refer to or distribute any Free
Writing Prospectus except:
(1) an applicable Free Writing Prospectus that (i)
is not an Issuer Free Writing Prospectus, and (ii) contains only
information describing the preliminary terms of the Notes or their
offering, which information is limited to the categories of terms
referenced in Schedule III hereto or otherwise permitted under Rule
134 under the Act;
(2) an applicable Free Writing Prospectus as shall
be agreed in writing with the Company that is not distributed, used
or referenced by the Agents in a manner reasonably designed to lead
to its broad unrestricted dissemination unless the Company consents
in writing to such dissemination; and
(3) an applicable Free Writing Prospectus identified
in a schedule to the applicable Terms Agreement as forming part of
the Disclosure Package.
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4. Agreements
. The Company agrees with each of you
that:
(a) Prior to the termination of the offering of the
Notes (including by way of resale by a Purchaser of Notes), the
Company will not file any amendment of the Registration Statement
or supplement to the Disclosure Package or the Prospectus (except
for (i) periodic or current reports filed under the Exchange Act,
(ii) a Supplement relating to any offering of, or a change in the
maturity dates, interest rates, issuance prices or other similar
terms of, any Notes or (iii) a supplement relating to an offering
of Securities other than the Notes) unless the Company has
furnished each of you a copy for your review prior to filing and
given each of you a reasonable opportunity to comment on any such
proposed amendment or supplement. Subject to the foregoing
sentence, the Company will cause each supplement to the Prospectus
to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to you of such filing. The Company
will promptly advise each of you (i) when the Prospectus, and any
supplement thereto (except for a supplement relating to an offering
of Securities other than the Notes), shall have been filed with the
Commission pursuant to Rule 424(b), (ii) when, prior to the
termination of the offering of the Notes, any amendment of the
Registration Statement shall have been filed or become effective,
(iii) of any request by the Commission for any amendment of the
Registration Statement or supplement to the Prospectus 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 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 reasonable proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any
such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal
thereof;
(b) In connection with any offering of the
Notes:
(i) The Company will, before amending or
supplementing the Disclosure Package, furnish to the Agents and the
Purchasers a copy of each such proposed amendment or supplement and
during the period where a prospectus relating to the Notes is
required to be delivered under the Act (including in circumstances
where such requirements may be satisfied pursuant to Rule 172) not
file any such proposed amendment or supplement to which the Agents
and the Purchasers reasonably object.
(ii) The Company will prepare any Free Writing
Prospectus to be included in the Disclosure Package in relation to
the Notes in a form which shall be provided to the Agents for their
review and comment prior to the Time of Sale. The Company will not
use, authorize, approve, refer to or file any Free Writing
Prospectus to which the Agents and the Purchasers reasonably
object.
10
(iii) If any event shall occur or condition exist as
a result of which it is necessary to amend or supplement the
Disclosure Package in order to make the statements therein, in
th
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