Exhibit 1.1
International Lease Finance Corporation
Medium-Term Notes, Series R
Due Nine Months or More
From Date of Issue
Amended and Restated Distribution Agreement 1
February 21, 2008
New York, New York
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ABN AMRO
Incorporated
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J.P. Morgan Securities Inc. |
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55 East 52nd
Street
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270 Park Avenue, 9th Floor |
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New York, New York
10055
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New York, New York 10017 |
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Banc of America
Securities LLC
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Lehman Brothers Inc. |
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9 West 57th
Street
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745 Seventh Avenue |
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New York, New York
10019
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New York, New York 10019 |
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Barclays Capital
Inc.
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Merrill Lynch, Pierce, Fenner &
Smith |
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200 Park
Avenue
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Incorporated |
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New York, New York
10166
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4 World Financial Tower |
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New York, New York 10080 |
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BNP Paribas
Securities Corp.
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Mitsubishi UFJ Securities
International plc |
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787 Seventh
Avenue
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6 Broadgate |
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New York, New York
10019
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London EC2M 2AA |
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Citigroup Global
Markets Inc.
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Scotia Capital (USA) Inc. |
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388 Greenwich
Street
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One Liberty Plaza |
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New York, New York
10013
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New York, New York 10006 |
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Credit Suisse
Securities (USA) LLC
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UBS Securities LLC |
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11 Madison
Avenue
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677 Washington Boulevard |
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New York, New York
10010
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Stamford, Connecticut 06901 |
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Deutsche Bank
Securities Inc.
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Wachovia Capital Markets, LLC |
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60 Wall
Street
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301 South College Street |
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New York, New York
10005
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Charlotte, North Carolina 28288 |
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HSBC Securities
(USA) Inc.
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452 Fifth Avenue,
3rd Floor
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New York, New York
10018
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In the event any preliminary Prospectus or supplement to a
preliminary Prospectus is used in connection with the transactions
contemplated by this Agreement, this Agreement shall be modified
accordingly. |
Ladies
& Gentlemen:
International Lease Finance
Corporation, a California corporation (the “Company”),
has entered into a Distribution Agreement, dated August 22,
2006, as amended by the Letter Agreement dated July 11, 2007 (as
amended, the “Original Distribution Agreement”), with
respect to the issuance and sale by the Company of up to an
aggregate principal amount set forth in Schedule I hereto of
its Medium-Term Notes, Series R, Due Nine Months or More from
Date of Issue (the “Notes”). The Company desires to
amend and restate the Original Distribution Agreement in its
entirety effective as of the date hereof (as amended and restated
hereby, this “Agreement”) as set forth herein.
Accordingly, the Company confirms its agreement with each of you
(together with your affiliates, individually, an
“Agent” and collectively, the “Agents”)
with respect to the issue and sale by the Company of the Notes. The
Notes will be issued under an indenture (the
“Indenture”) dated as of August 1, 2006, 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 will be issued 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 bear interest at rates to be provided in a
supplement to the Prospectus referred to below.
1. Representations and
Warranties . The Company represents and warrants to you as of
the date hereof, as of each Closing Date and Settlement Date
hereinafter referred to, and as of the times referred to in
Section 4(k) hereof, as follows:
(a) The
Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the “Act”) and has
prepared and filed with the Securities and Exchange Commission (the
“Commission”) an automatic shelf registration
statement, as defined in Rule 405, on such Form (the file
number of which is set forth in Schedule I hereto),
which became effective upon filing, for the registration under the
Act of the aggregate principal amount set forth in
Schedule I hereto of debt securities including the
Notes (the “Securities”). Such 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. In connection with the
sale of Notes, the Company proposes to file with the Commission
pursuant to Rule 424 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 and has previously
advised you of all further information (financial and other) with
respect to the Company to be set forth therein. Such registration
statement, including the exhibits thereto and information otherwise
deemed to be part of and included in the Registration Statement
pursuant to regulations under the Act, as amended to the date of
this Agreement, is hereinafter called the “Registration
Statement”; such prospectus, as supplemented pursuant to the
previous sentence and in the form in which it shall be filed by the
Company with the Commission pursuant to Rule 424 under the
Act, 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 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”,
“amendment” or “supplement” with respect to
the Registration Statement or the Prospectus shall be deemed to
refer to and include (i) the filing of any document under
the
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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.
(b) On
the date hereof, on each Effective Date (as defined below), on each
date of filing of any document incorporated by reference in the
Registration Statement, when any supplement to the Prospectus is
filed with the Commission in accordance with Rule 424(b) 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 such time, the Prospectus as
supplemented as of any such time, and the Indenture did or will
comply in all material respects with the applicable requirements of
the Act, the Exchange Act and the Trust Indenture Act of 1939, as
amended (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; (iii) the Prospectus, as
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
(A) the third, fourth and fifth sentences of the third
paragraph, (B) the fourth paragraph, (C) the fifth
paragraph with respect to the Agents only, and (D) the second
sentence of the eighth paragraph, each under the caption
“Plan of Distribution” in the supplement to the form of
prospectus described in the third sentence of
Section 1(a) hereto. 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 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 Act.
(c) 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 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.
(d) The
Securities have been duly authorized and, when issued and delivered
pursuant to this Agreement and, if applicable, the Terms Agreement
(as defined in Section 2(b)
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hereof)
or otherwise, will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture, and the Securities will be substantially in the form
filed as an exhibit to the Registration Statement or a document
incorporated by reference therein; the Indenture has been duly
authorized, executed and delivered by the Company and has been duly
qualified under the Trust Indenture Act and constitutes a valid and
legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors’ rights and to general equity
principles; and the Securities and the Indenture will conform to
the descriptions thereof in the Prospectus.
(e) 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
(“S&P”).
(f) The
Company confirms as of the date hereof, and each acceptance by the
Company of an offer to purchase Notes will be deemed to be an
affirmation, that the Company is in compliance with all provisions
of Section 1 of Laws of Florida, Chapter 92-198, An Act
Relating to Disclosure of Doing Business with Cuba, and the Company
further agrees that if it commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba
after the date the Registration Statement becomes or has become
effective with the Commission or with the Florida Department of
Banking and Finance (the “Department”), whichever date
is later, or if the information reported in the Prospectus, if any,
concerning the Company’s business with Cuba or with any
person or affiliate located in Cuba changes in any material way,
the Company will provide the Department notice of such business or
change, as appropriate, in a form acceptable to the
Department.
(g) This
Agreement has been duly authorized, executed and delivered by the
Company.
(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 applicable Notes, the Disclosure Package (as
defined below), will not contain any untrue statement of a material
fact, or omit to state any material fact necessary in order to make
the
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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 either the Applicable Time is
not specified therein or 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. For purposes of this Agreement, the term
“Disclosure Package” shall mean (i) the
Prospectus, as amended and supplemented as of the Applicable Time,
(ii) any Permitted Free Writing Prospectus as defined in
Section 4(g) hereto, and (iii) any other “free writing
prospectus”, as defined in Rule 405 under the Act
(“Free Writing Prospectus”), including any
“issuer free writing prospectus”, as defined in
Rule 433 under the Act (“Issuer Free Writing
Prospectus”), that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Disclosure
Package.
(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 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.
(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 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”).
(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 (A) the third,
fourth and fifth sentences of the third paragraph, (B) the
fourth paragraph, (C) the fifth paragraph with respect to the
Agents only, and (D) the second sentence of the eighth
paragraph, each under the
5
caption
“Plan of Distribution” in the supplement to the form of
prospectus described in the third sentence of
Section 1(a) hereto.
2. Appointment of Agents;
Purchases as Principals .
(a) Subject
to the terms and conditions set forth herein, the Company hereby
authorizes you to act as its agents to solicit offers for the
purchase of all or part of the Notes, upon the terms set forth in
the Prospectus, as supplemented, during a period beginning on the
date hereof and ending on the date the Company shall specify to you
in writing. The Company agrees to pay each Agent a commission, at
the time of settlement of each sale of Notes by the Company as a
result of a solicitation made by such Agent, in an amount to be
agreed to by the Company and such Agent at the time of
solicitation, it being understood and agreed that the commissions
may not be the same for each Agent. Such commissions shall be
payable as specified in the Procedures (as defined in
Section 3 ). Offers for the purchase of Notes may be
solicited by the Agents as agents for the Company at such time and
in such amounts as the Agents deem advisable. The Company may from
time to time offer Notes for sale otherwise than through the
Agents. If any agent, other than an Agent, is appointed during the
term of this Agreement with respect to the Notes, the Company shall
promptly notify the Agents of such appointment.
(b) Each
sale of Notes to you as principal shall be made in accordance with
the terms of this Agreement and a separate agreement which will
provide for the sale of such Notes to, and the purchase and
reoffering thereof by, you. Each such separate agreement (which may
be an oral agreement confirmed in writing or which may be
substantially in the form of Schedule II hereto and
which may take the form of an exchange of any standard form of
written telecommunication between you and the Company) is herein
referred to as a “Terms Agreement”. Your commitment to
purchase Notes pursuant to any Terms Agreement shall be deemed to
have been made on the basis of the representations and warranties
of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each Terms Agreement shall specify
the principal amount of Notes to be purchased by you pursuant
thereto, the price to be paid to the Company for such Notes, the
initial public offering price, if any, 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”). Such
Terms Agreement shall also specify any requirements for
officers’ certificates and, if mutually agreed upon in
advance by the Company, on the one hand, and the Agents, on the
other hand, any requirements for opinions of counsel and/or letters
from independent auditors pursuant to Section 5
hereof.
3. Offering Procedure .
The Agents shall communicate to the Company, orally or in writing,
each offer to purchase Notes on terms previously communicated by
the Company to the Agents, 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
of the Agents shall have the right, in its discretion reasonably
exercised, to reject any proposed purchase of Notes on different
terms, as a whole or in part, and any such rejection shall not be
deemed a breach of its agreement contained herein. The Agents and
the Company agree to perform the respective duties and obligations
specifically provided to be performed by them in the Medium-Term
Notes Administrative Procedures (attached hereto as
Exhibit A ) (the
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“Procedures”), as amended from time to time. The
Procedures may only be amended by written agreement of the Company
and the Agents after notice to, and with the approval of, the
Trustee.
4. Agreements . The
Company agrees with you that:
(a) 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 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 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.
(b) If
there occurs an event or development as a result of which, prior to
the delivery of a supplement to the Prospectus containing final
pricing terms in respect of an offering 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 (1) 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),
(2) subject to the first sentence of paragraph (a)
of this Section 4 and the first sentence of
paragraph (g) of this Section 4 , 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 correct such statement or
omission, and (3) supply any supplemented Disclosure Package
to you in such quantities as you may reasonably request.
(c) If,
at any time when a prospectus relating to the Notes is required to
be delivered under the Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172), any event
occurs as a result of which the Registration Statement, as then
amended, or the Prospectus, as then supplemented, would include any
untrue statement of a
7
material
fact, or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, or if it shall be necessary to
amend the Registration Statement or to supplement the Prospectus to
comply with the Act or the Exchange Act or the respective rules
thereunder, the Company promptly will (i) notify the Agents to
suspend solicitation of offers to purchase Notes (and, if so
notified by the Company, the Agents shall forthwith suspend such
solicitation and cease using the Prospectus as then amended or
supplemented), (ii) prepare and file with the Commission,
subject to the first sentence of paragraph (a) of this
Section 4 , an amendment or supplement or new
registration statement which will correct such statement or
omission or an amendment or supplement or new registration
statement which will effect such compliance, (iii) use its
best efforts to have any amendment to the Registration Statement or
new registration statement declared effective as soon as
practicable in order to avoid any disruption in use of the
Prospectus and (iv) will supply any such amended or
supplemented Prospectus or prospectus included in a new
registration statement to the Agents in such quantities as the
Agents may reasonably request. If such amendment or supplement is
satisfactory in all respects to the Agents, the Agents will, upon
the filing of such amendment or supplement with the Commission and
upon the effectiveness of an amendment to the Registration
Statement or new registration statement if such an amendment or new
registration statement is required, resume their obligation to
solicit offers to purchase Notes hereunder.
(d) As
soon as practicable, the Company will make generally available to
its security holders and to you an earnings statement or statements
of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under
the Act and, not later than 45 days after the end of the
12-month period beginning at the end of each fiscal quarter of the
Company (other than the last fiscal quarter of any fiscal year)
during which an Effective Date occurs, not later than 90 days
after the end of the fiscal year beginning at the end of each last
fiscal quarter of any fiscal year of the Company during which an
Effective Date occurs, and not later than 90 days after the
end of each fiscal year of the Company during which any Notes were
issued, the Company will make generally available to its security
holders an earnings statement covering such 12-month period or such
fiscal year, as the case may be, that will satisfy the provisions
of such Section 11(a) and Rule 158.
(e) The
Company will furnish to you and your counsel, without charge,
copies of the Registration Statement (including exhibits thereto)
and each amendment thereto and, so long as delivery of a prospectus
may be required by the Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172), as many
copies of any preliminary Prospectus and the Prospectus and any
amendments thereof and supplements thereto as you may reasonably
request.
(f) The
Company will arrange for the qualification of the Notes for sale
under the laws of such jurisdictions as you may reasonably
designate, will maintain such qualifications in effect so long as
required for the distribution of the Notes, and, if requested by
the Agents, will arrange for the determination of the legality of
the Notes for purchase by institutional investors.
(g) The
Company hereby agrees that, until each Agent agrees otherwise in
writing, no communication that would constitute an Issuer Free
Writing Prospectus or that would
8
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 4(h) and containing a description
of the final terms 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 4(g) 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 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
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 Act with respect to the Notes.
Nothing in this Section 4(g) shall be deemed to require the
approval by any Agent of any filings by the Company under the
Exchange Act.
(h) The
Company agrees to prepare and file a Final Term Sheet with respect
to the sale of any Notes and to file that Final Term Sheet pursuant
to Rule 433(d) promulgated under the Act within the time required
by such Rule.
(i) The
Company shall, whether or not any sale of the Notes is consummated,
(i) pay all expenses incident to the performance of its
obligations under this Agreement, including the fees and
disbursements of its accountants and counsel, the cost of printing
and delivery of the Registration Statement, any preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus, all
amendments thereof and supplements thereto, the Indenture and all
other documents relating to the offering, the cost of preparing,
printing, packaging and delivering the Notes, the fees and
disbursements, including fees of counsel incurred in connection
with the qualification of the Notes for sale and determination of
eligibility for investment of the Notes under the securities or
Blue Sky laws of each such jurisdiction as you may reasonably
designate, the fees and disbursements of the Trustee and the fees
of any agency that rates the Notes, and (ii) reimburse the
Agents on a monthly basis for all out-of-pocket expenses (including
without limitation advertising expenses) incurred by the Agents and
approved by the Company in advance, in connection with the offering
and the sale of the Notes, and (iii) be responsible for the
reasonable fees of counsel for the Agents incurred in connection
with the offering and sale of the Notes.
(j) Each
acceptance by the Company of an offer to purchase Notes, and each
sale of Notes to you pursuant to a Terms Agreement, will be deemed
to be an affirmation that the representations and warranties of the
Company contained in this Agreement and in any certificate
theretofore delivered to you pursuant hereto are true and correct
at and as of such date and a representation and warranty to you
that (i) neither the Registration Statement nor the
Prospectus, as then amended or supplemented, fails to reflect any
facts or events which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
Registration Statement or the Prospectus, as then amended or
supplemented, (ii) the Registration Statement, as amended, at
each Effective Date, did not include any untrue statement
9
of a
material fact, or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, (iii) the Prospectus, as amended or supplemented,
does not include 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, and (iv) the Disclosure
Package, as amended or supplemented as of the Applicable Time with
respect to the applicable Notes, did not include any untrue
statement of a material fact, or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except
that the foregoing does not apply 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, the Prospectus or
the Disclosure Package or any amendment thereof or supplement
thereto in reliance upon and in conformity with information
furnished in writing to the Company by you or on your behalf
specifically for use in connection with the preparation of the
Registration Statement and the Prospectus or any amendments thereof
or supplements thereto, it being understood and agreed that the
only such information furnished by or on behalf of any Agent is the
information in (A) the third, fourth and fifth sentences of
the third paragraph, (B) the fourth paragraph, (C) the
fifth paragraph with respect to the Agents only, and (D) the
second sentence of the eighth paragraph, each under the caption
“Plan of Distribution” in the supplement to the form of
prospectus described in the third sentence of
Section 1(a) hereto.
(k) Each
time that 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 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 or, if so indicated in the applicable
Terms Agreement, the Company sells Notes to you pursuant to a Terms
Agreement, the Company will deliver or cause to be delivered
forthwith to you a certificate of the Company signed by the
Chairman or Vice Chairman of the Board, the President or a Vice
President and the principal financial or accounting officer of 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 form reasonably satisfactory to you, to the effect that
the statements contained in the certificate that was last furnished
to you pursuant to either Section 5(f) or this
Section 4(k) are true and correct at the time of the
effectiveness of such amendment, the filing of such supplement or
document or of such sale, as though made at and as of such time
(except that (i) the last day of the fiscal quarter for which
financial statements of the Company were last filed with the
Commission shall be substituted for the corresponding date in such
certificate and (ii) such statements shall be deemed to relate
to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a
certificate of the same tenor as the certificate referred to in
Section 5(f) but modified to relate to the last day of
the fiscal quarter for which financial statements of the Company
were last filed with the Commission and to the Registration
Statement and the Prospectus as amended and supplemented to such
time.
(l) Each
time that the Registration Statement or the Prospectus is amended
or supplemented or there is filed with the Commission a Form 10-K
or Form 10-Q that is incorporated by reference into the Prospectus
(other than an amendment or supplement providing solely the terms
of an issue of Notes in a pricing supplement), or, if so agreed
upon by the
10
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 forthwith to you a
written opinion or opinions of counsel to the Company satisfactory
to you, dated the date of the effectiveness of such amendment, the
date of filing of such supplement or document or the date of such
sale, of the same tenor as the opinions referred to in
Sections 5(c) and 5(d) but modified to relate to
the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion or, in lieu of
such opinions, counsel last furnishing such an opinion to you may
furnish you with a letter to the effect that you may rely on such
last opinion to the same extent as though it were dated the date of
such letter authorizing reliance (except that statements in such
last opinion will be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of
delivery of such letter authorizing reliance).
(m) Each
time that (i) the Registration Statement or the Prospectus is
amended or supplemented by a filing under the Act to include
additional financial information, (ii) there is filed with the
Commission under the Exchange Act any document incorporated by
reference into the Prospectus as amended and supplemented which
contains additional financial information (other than any
information in a Current Report on Form 8-K responsive to
Item 2.02 of such Form 8-K and relating exclusively to
quarterly or annual financial results of the Company) or
(iii) 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 cause
PricewaterhouseCoopers LLP, the independent registered public
accounting firm which has audited the financial statements of the
Company and its subsidiaries included or incorporated by reference
in the Prospectus as amended and supplemented, forthwith to furnish
you a letter, dated the date of filing with the Commission of such
supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form
satisfactory to you in your reasonable judgment, of the same tenor
as the letter referred to in Section 5(g) hereof, but
modified to relate to the Registration Statement and the Prospectus
as amended and supplemented to the date of such letter, with such
changes as may be necessary to reflect changes in the financial
statements and other information derived from the accounting
records of the Company; provided, however, that where such
amendment or supplement only sets forth unaudited quarterly
financial information, the scope of such letter may be limited to
relate to such unaudited financial information unless any other
accounting or financial information included in the Registration
Statement or the Prospectus as so amended or supplemented is of a
character that, in your reasonable judgment, such other information
should be addressed by such letter.
(n) Between
the date of any Terms Agreement and the Settlement Date with
respect to such Terms Agreement, the Company will not, without your
prior consent, offer or sell, or enter into any agreement to sell,
any debt securities of the Company that have a substantially
similar maturity and the same currency as the Notes being offered
or sold pursuant to such Terms Agreement, except as may otherwise
be provided in any such Terms Agreement.
5. Conditions to
Obligations . Your obligations as Agents to solicit offers to
purchase the Notes and your obligations to purchase Notes pursuant
to any Terms Agreement or otherwise shall be subject to the
accuracy of the representations and warranties on the part of the
Company contained in this Agreement as of the date hereof, and the
accuracy of the
11
representations and warranties on the part of the Company contained
herein 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 Closing Date and as of each Settlement Date
with respect to any applicable Terms Agreement, to the accuracy of
the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional
conditions:
(a) The
Prospectus, and any supplement thereto, has been filed in a manner
and within the time period required by Rule 424(b); the final
term sheet contemplated by Section 4(g) 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.
(b) No
stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, or any notice objecting to
its use shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(c) The
Company shall have furnished to you the opinion of corporate
counsel for the Company, dated such Settlement Date, if applicable,
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 have a 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.
(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.
(d) The
Company shall have furnished to you the opinion of
O’Melveny & Myers LLP, special counsel for the
Company, dated such Settlement Date, if applicable, to the effect
that:
(i) The
Company has been duly incorporated and is validly existing in good
standing under the laws of the State of California and 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,
12
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, 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, 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 being 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 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
13
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 been declared effective under the 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 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) 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.
(xi) 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 be expressed
concerning the financial statements and other financial information
contained or incorporated by reference therein.
(xii) The
statements in the Prospectus under the captions “Description
of Debt Securities” and “Description of Medium-Term
Notes, Series R”, 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.
(xiii) 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 7 of this
Agreement.
(xiv) 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.
(xv) The
statements contained in the Prospectus under the caption
“Certain United States Federal Income Tax
Considerations” insofar as they purport to describe
14
the
material tax consequences under the United States 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, 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.
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 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, pursuant to
Rule 430B(f)(2) under the 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 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
Section 2(b) in accordance with the provisions of a
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 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 (xii) and (xv) above), and such
counsel need not express any belief (A) except as specifically
stated in paragraph (xi) 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 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
15
of the
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 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.
(e) You
shall have received from Morgan, Lewis & Bockius LLP, your
counsel, such opinion or opinions, dated such Settlement Date, if
applicable, 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 upon such
matters.
(f) 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 such Settlement Date, if applicable, 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 such
Settlement Date, if applicable, with the same effect as if made on
such Settlement Date, if applicable, 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), 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.
16
(g) At
such Settlement Date, if applicable,, PricewaterhouseCoopers LLP
shall have furnished to you a letter (which may refer to a letter
or letters previously delivered to you), dated as of such
Settlement Date, if applicable, 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 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:
(1) (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;
(2)
any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding
items in the
17
unaudited 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;
(3) 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 (2) 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;
(4) 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 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;
(5) 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
&nbs
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