DISTRIBUTION AGREEMENT

 

(a)                                  An “automatic shelf registration statement” as defined under Rule 405 under the Securities Act of 1933, as amended (the “Act”) on Form S-3 (File No. 333-130580) in respect of the Notes and Warrants has been filed with the Securities and Exchange Commission (the “Commission”) not earlier than three years prior to the date hereof; such registration statement, and any post-effective amendment thereto, became effective on filing; and no stop order suspending the effectiveness of such registration statement or any part thereof has been issued and no proceeding for that purpose has been initiated or threatened by the Commission, and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company (the base prospectus filed as part of such registration statement, in the form in which it has most recently been filed with the Commission, is hereinafter called the “Base Prospectus”; any preliminary prospectus (including any preliminary prospectus supplement) relating to the Notes and Warrants filed with the Commission pursuant to Rule 424(b) under the Act is hereinafter called a “Preliminary Prospectus”; the various parts of such registration statement, including all exhibits thereto but excluding all Forms T-1 and including any prospectus supplement relating to the Notes and Warrants that is filed with the Commission and deemed by virtue of Rule 430B to be part of such registration statement, each as amended at the time such registration statement or any part thereof became effective, are hereinafter collectively called the “Registration Statement”; the Base Prospectus, as supplemented by the prospectus supplement dated December 21, 2005 relating to the Notes and Warrants, is hereinafter called the “Prospectus”; any reference herein to the Base Prospectus, any Preliminary Prospectus 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 under the Act, as of the date of such prospectus; any supplement to the Prospectus that sets forth only the terms of a particular issue of the Notes and Warrants is hereinafter called a “Pricing Supplement”; any reference to any amendment or supplement to the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any post-effective amendment to the Registration Statement, any prospectus supplement relating to the Notes and Warrants filed with the Commission pursuant to Rule 424(b) under the Act and any documents filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated therein, in each case after the date of the Base Prospectus, such Preliminary Prospectus, or the Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; any reference to the “Prospectus as amended or supplemented”, shall be deemed to refer to and include the Prospectus as amended or supplemented (including by the applicable Pricing Supplement filed in accordance with the terms hereof and any other prospectus supplement specifically referred to in such Pricing Supplement) in relation to the Notes and Warrants to be sold pursuant to this Agreement, in the form filed or transmitted for filing with the Commission pursuant to Rule 424(b) under the Act, including any documents incorporated by reference therein as of the date of such filing);

 

(b)                                 No order preventing or suspending the use of any Preliminary Prospectus or any “issuer free writing prospectus” as defined in Rule 433 under the Act relating to the Notes

 

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and Warrants (an “Issuer Free Writing Prospectus”) has been issued by the Commission, and each Preliminary Prospectus and Issuer Free Writing Prospectus, at the time of filing thereof, conformed in all material respects to the requirements of the Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder, and did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by any Agent expressly for use in the Prospectus as amended or supplemented to relate to a particular issuance of Notes or Warrants;

 

(c)                                  The documents incorporated by reference in the Prospectus as amended or supplemented, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and any further documents so filed and incorporated by reference in the Prospectus and any amendments or supplements thereto, when they become effective or are filed with the 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 the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by any Agent expressly for use in the Prospectus as amended or supplemented to relate to a particular issuance of Notes and Warrants;

 

(d)                                 The Registration Statement and the Prospectus conform, and any amendments or supplements thereto will conform, when they become effective or are filed with the Commission, as the case may be, and as of each subsequent Representation Date will conform, in all material respects to the requirements of the Act and the Trust Indenture Act, and the rules and regulations of the Commission thereunder and do not and will not as of its effective date as to the Registration Statement and as of its filing date and as of each Representation Date as to the Prospectus contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by any Agent expressly for use in the Prospectus as amended or supplemented to relate to a particular issuance of Notes and Warrants;

 

(e)                                  The Time of Sale Information (as defined below) at the Time of Sale (as defined below) and at each Settlement Date 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

 

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of the circumstances under which they were made, not misleading; provided that this representation and warranty shall not apply to any statements made in reliance upon and in conformity with information furnished in writing to the Company by any Agent expressly for use in such Time of Sale Information.

 

(i)                                     “Time of Sale” shall mean the time of confirmation of any sales of the Notes or Warrants.

 

(ii)                                  “Time of Sale Information” shall mean (X) the Prospectus most recently filed or transmitted for filing as of such Time of Sale, each Pricing Supplement that relates to the sale of Notes or Warrants confirmed at such Time of Sale that has been filed or transmitted for filing as of such Time of Sale, each Preliminary Prospectus or Term Sheet (defined below), if any, that relates to the sale of Notes or Warrants confirmed at such Time of Sale that has been filed or transmitted for filing as of such Time of Sale and (Y) each Issuer Free Writing Prospectus  that has been prepared by or on behalf of the Company relating to the Notes or Warrants.

 

(f)                                    Other than an Issuer Free Writing Prospectus approved in advance by HSBC Securities (USA) Inc. in its capacity as agent, the Company (including its agents and representatives, other than the Agents in their capacity as such and selected dealers purchasing Notes or Warrants as principal from the Agents) has not made, used, prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any written communication (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes or Warrants. At each Time of Sale, each Issuer Free Writing Prospectus included in the applicable Time of Sale Information complied in all material respects with the Act, has been filed in accordance with the Act (to the extent required thereby) and, when taken together with the pricing supplements and Prospectus filed prior to such Issuer Free Writing Prospectus, did not, and 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 that this representation and warranty shall not apply to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Agent furnished to the Company in writing by such Agent expressly for use in any such Issuer Free Writing Prospectus.

 

(g)                                 The financial statements included or incorporated by reference in the Registration Statement present fairly the financial position of the Company and subsidiaries as of the dates indicated and the results of their respective operations for the periods specified; and said financial statements have been prepared in conformity with generally accepted accounting principles applied on a basis which is consistent in all material respects during the periods involved;

 

(h)                                 The Company and its significant subsidiaries, as defined in Rule 1-02 of Regulation S-X of the Commission (“significant subsidiaries”), are validly organized and existing corporations under the laws of their respective jurisdictions of incorporation; and the

 

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Company and its significant subsidiaries are duly authorized under statutes which regulate the business of insurance or banking or the business of making loans or of financing the sale of goods (commonly called “small loan laws,” or “sales finance laws”), or are permitted under the general interest statutes and related laws and court decisions to conduct in the various jurisdictions in which they do business the respective businesses therein conducted by them as described in the Prospectus except where failure to be so authorized or permitted will not have a material adverse effect on the business or consolidated financial condition of the Company and its subsidiaries taken as a whole;

 

(i)                                     There are no legal or governmental proceedings pending, other than those referred to in the Prospectus, to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject, other than proceedings which are not reasonably expected, individually or in the aggregate, to have a material adverse effect on the consolidated financial position, shareholders’ equity or results of operations of the Company and its subsidiaries taken as a whole; and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;

 

(j)                                     The Notes have been duly authorized, and, when issued and delivered pursuant to this Agreement and any Terms Agreement and the Indenture, will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the applicable Indenture; when any Warrants have been duly authorized, executed, countersigned, issued and delivered pursuant to this Agreement, the Warrant Agreement and any Terms Agreement against payment of the consideration therefor, such Warrants will have been duly authorized, executed, countersigned, issued and delivered and will constitute valid and legally binding obligations of the Company entitled to the benefits provided by the Warrant Agreement which will be substantially in the form filed as an exhibit to the Registration Statement; the Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by the Company and the Trustee and constitutes, and the Warrant Agreement when duly authorized, executed and delivered by the Company will constitute, a valid and legally binding instrument enforceable in accordance with its terms except as the same may be limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights or by general principles of equity; and the Indenture conforms to the description thereof in the Prospectus as originally filed with the Commission, and the Notes, the Warrants and the Warrant Agreement relating to any particular issuance of Notes and Warrants will conform to the description thereof in the Prospectus as amended or supplemented;

 

(k)                                  The issue and sale of the Notes and Warrants and the compliance by the Company with all of the provisions of the Notes and Warrants, the Indenture, the Warrant Agreement, this Agreement and any Terms Agreement will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a

 

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party or by which the Company or any of its subsidiaries may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject (except for conflicts, breaches and defaults which would not, individually or in the aggregate, be materially adverse to the Company and its subsidiaries taken as a whole or materially adverse to the transactions contemplated by this Agreement), nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or the By-Laws of the Company or any of its subsidiaries or any statute or order, rule or regulation applicable to it, of any court or any Federal, State or other regulatory authority or any other governmental body having jurisdiction over it; and no consent, approval, authorization, order, registration or qualification of or with any court or other such regulatory authority or other governmental body is required for the issue and sale of the Notes and Warrants or the consummation of the other transactions contemplated in this Agreement or any Terms Agreement except the registration under the Act of the Notes and Warrants referred to in Section 1(a) hereof, the qualification of the Indenture under the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under State securities or Blue Sky laws in connection with the purchase and distribution of the Notes and Warrants by the Agents;

 

(l)                                     The Company and its subsidiaries taken as a whole have not sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus as amended or supplemented any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree; and since the date of the latest audited financial statements included or incorporated by reference in the Prospectus as it may be amended or supplemented there has not been any material change in the capital stock or long-term debt of the Company (except for changes resulting from the purchase by the Company of its outstanding securities for sinking fund purposes) or any material adverse change in the general affairs or management, or the consolidated financial position, shareholders’ equity or results of operations of the Company and its subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Prospectus as amended or supplemented; and

 

(m)                               KPMG LLP, who have certified certain financial statements included or to be included in the Registration Statement and the Prospectus, are an independent registered public accounting firm as required by the Act and the rules and regulations of the Commission thereunder.

 

(n)                                 (i)(A)   At the time of filing the Registration Statement, (B) 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 Section 13 or 15(d) of the Exchange Act or form of prospectus) and (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Notes or Warrants in reliance on the exemption of Rule 163 under the Act, the Company was a “well-known seasoned issuer” as defined in Rule 405 under the Act; and (ii) 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) under the Act) of the Notes or Warrants, the Company was not an

 

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“ineligible issuer” as defined in Rule 405 under the Act.

 

Any certificate signed by any officer of the Company and delivered to any Agent or to counsel for such Agent in connection with an offering of Notes and Warrants shall be deemed a representation and warranty by the Company to you as to the matters covered thereby.

 

2.                                       (a)  Solicitations as Agent.  On the basis of the representations and warranties herein contained, but subject to the terms and conditions herein set forth, each Agent agrees, as agent of the Company, to use its reasonable efforts to solicit offers to purchase the Notes and Warrants upon the terms and conditions set forth in the Prospectus as it may be amended or supplemented.

 

The Company reserves the right, in its sole discretion, to suspend, at any time, the solicitation of purchases of the Notes and Warrants.  Upon receipt of instructions from the Company, each Agent will forthwith suspend solicitation of purchases from the Company until such time as the Company has advised it that such solicitation may be resumed.

 

The Company agrees to pay each Agent a commission, in the form of a discount, equal to the percentage of the principal amount of each Note sold by the Company (including upon exercise of a Warrant) as a result of a solicitation made by such Agent as set forth in Schedule A hereto.

 

As Agent, each of you is authorized to solicit orders for the Notes only in denominations of $100,000 or any amount in excess thereof which is an integral multiple of $1,000 at a purchase price equal to 100% of their principal amount.  Each Agent shall communicate to the Company, orally or in writing, each reasonable offer to purchase Notes and Warrants received by such Agent.  The Company shall have the sole right to accept offers to purchase the Notes and Warrants and may reject any such offer in whole or in part.  Each Agent shall have the right to reject any offer to purchase the Notes and Warrants received by it in whole or in part, and any such rejection shall not be deemed a breach of its agreement contained herein.

 

(b)                                 Purchases as Principal.  Each sale of Notes to any Agent as principal shall be made in accordance with the terms of this Agreement and pursuant to a separate agreement which will provide for the sale of such Notes and Warrants to, and the purchase and re-offering thereof by, such Agent.  Each such separate agreement, which may be an oral agreement between such Agent and the Company, confirmed in writing (which may take the form of an exchange of any standard form of written telecommunications between you and the Company) and which shall be with respect to such information (as applicable) as is specified in Exhibit A hereto, is herein referred to as a “Terms Agreement.”  Each Agent is authorized to utilize a selling or dealer group in connection with the resale of the Notes and Warrants purchased.  An Agent’s commitment to purchase Notes and Warrants 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.

 

(c)                                  Procedures.  Administrative procedures respecting the sale of Notes shall be

 

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agreed upon from time to time by each Agent, the Company and the Trustee (the “Procedures”).  Each Agent, on the one hand, and the Company, on the other hand, agree to perform the respective duties and obligations specifically provided to be performed herein and in the Procedures.

 

(d)                                 Delivery.  The documents required to be delivered by Section 5 hereof shall be delivered at the office of HSBC Finance Corporation, 2700 Sanders Road, Prospect Heights, Illinois, on the date hereof, or at such other time as the Agents and the Company may agree upon in writing (the “Closing Time”).

 

3.                                       The Company agrees with each Agent:

 

(a)                                  To make no further amendment or any supplement to the Registration Statement or Prospectus relating to the Notes and Warrants which shall be disapproved by you promptly after reasonable notice thereof; to furnish you with copies of any such amendment or supplement; to file promptly and to furnish you simultaneously with copies of all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to the date hereof and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Notes and Warrants; to advise you, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement, or any amended Registration Statement has become effective, or any supplement or amendment to the Prospectus has been filed, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus, of the suspension of the qualification of the Notes and Warrants for offering or sale in any jurisdiction, of the initiation or threat of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and in the event of the issuance of any stop order or of any order preventing or suspending the use of any prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;

 

(b)                                 The Company will prepare, with respect to any Notes or Warrants to be sold through or to the Agents, an Issuer Free Writing Prospectus in accordance with this Section in the form of a term sheet or preliminary pricing supplement with respect to such Notes or Warrants (a “Term Sheet”) and will file such Term Sheet with the Commission pursuant to Rule 433 under the Act not later than the time specified by such rule.  Before using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, the Company will furnish to HSBC Securities (USA) Inc., in its capacity as agent, and counsel for HSBC Securities (USA) Inc., a copy of the proposed Issuer Free Writing Prospectus for review and will not use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus to which HSBC Securities (USA) Inc. objects in its reasonable judgment.

 

(c)                                  Promptly from time to time to take such action as you may reasonably request to qualify the Notes and Warrants for offering and sale under the securities laws of such jurisdictions as you may request and to comply with such laws so as to permit the continuance of sales and dealings in such jurisdictions for as long as may be necessary to complete the

 

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distribution, provided that in connection therewith, the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;

 

(d)                                 To furnish you with copies of each amendment and supplement to the Registration Statement and of each Prospectus as amended or supplemented, as filed pursuant to Rule 424 under the Act, in such quantities as you may from time to time reasonably request, and, if the delivery of a prospectus is required at any time in connection with the offering or sale of any of the Notes and Warrants and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented or Time of Sale Information would include an 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 when such Prospectus or Time of Sale Information is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or Time of Sale Information to file under the Exchange Act any document to be incorporated by reference in the Prospectus in order to comply with the Act, the Exchange Act or the Trust Indenture Act, to immediately notify you and instruct you to cease the solicitation of offers to purchase the Notes and Warrants in your capacity as Agent of the Company and to cease sales of any Notes and Warrants you may then own as principal, and to prepare and furnish without charge to you as many copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;

 

(e)                                  As soon as practicable but in any event not later than 16 months after the date of each acceptance by the Company of an offer to purchase Notes or Warrants hereunder, the Company will make generally available to its security holders an earnings statement that will satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder covering a period of at least 12 months beginning after the last to occur of (i) the effective date of the Registration Statement, (ii) the effective date of the most recent post-effective amendment to the Registration Statement to become effective prior to the date of such acceptance, (iii) the date of the Annual Report of the Company on Form 10-K most recently filed with the Commission prior to the date of such acceptance and (iv) the date a prospectus supplement filed in connection with an offer to purchase Notes or Warrants is deemed a part of the Registration Statement pursuant to Rule 430B.

 

(f)                                    During the period beginning on the date of any Terms Agreement stating that the restrictions of this Section 3(f) shall be applicable and continuing to and including the earlier of (i) the termination of trading restrictions on the Notes purchased in accordance with such Terms Agreement, as notified to the Company by you, and (ii) the Settlement Date with respect to such Terms Agreement, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company (except debt securities issued on exercise of warrants), other than Notes offered or sold as contemplated herein, which mature more than nine months after the Settlement Date with respect to such Terms Agreement and which are substantially similar to the Notes and Warrants, without your prior written consent;

 

(g)                                 On or prior to the date on which there shall be released to the general public

 

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preliminary or definitive interim financial statement information related to the Company with respect to each of the first three quarters of each fiscal year or preliminary financial statement information with respect to any fiscal year, to furnish such information to you, confirmed in writing, and to cause the Prospectus to be amended or supplemented to include or incorporate by reference capsule consolidated financial information with respect to the results of operations of the Company and subsidiaries for the period between the end of the preceding fiscal year and the end of such quarter or for such fiscal year, as the case may be, and corresponding information for the comparable period of the preceding fiscal year, as well as such other information and explanations as shall be necessary for an understanding of such amounts or as shall be required by the Act or the rules and regulations of the Commission thereunder; provided, however, that if on the date of such release you shall have suspended solicitation of purchases of the Notes and Warrants in your capacity as Agent pursuant to a request from the Company, and shall not then hold any Notes or Warrants as principal, the Company shall not be obligated so to amend or supplement the Prospectus until such time as the Company shall determine that solicitations of purchases of the Notes and Warrants should be resumed or shall subsequently enter into a new Terms Agreement with you; and

 

(h)                                 On or prior to the date on which there shall be released to the general public financial information included in or derived from the audited consolidated financial statements of the Company and subsidiaries for the preceding fiscal year, to cause the Registration Statement and the Prospectus to be amended, whether by the filing of documents pursuant to the Exchange Act, the Act or otherwise, to include or incorporate by reference such audited financial statements and the report or reports, and consent or consents to such inclusion or incorporation by reference, of the independent registered public accounting firm with respect thereto, as well as such other information and explanations as shall be necessary for an understanding of such financial statements or as shall be required by the Act or the rules and regulations of the Commission thereunder; provided, however, that if on the date of such release you shall have suspended solicitation of purchases of the Notes and Warrants in your capacity as Agent pursuant to a request from the Company, and shall not then hold any Notes and Warrants as principal, the Company shall not be obligated so to amend or supplement the Prospectus until such time as the Company shall determine that solicitation of purchases of the Notes and Warrants should be resumed or shall subsequently enter into a new Terms Agreement with you.

 

4.                                       The Company will pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the cost of preparing and filing the registration statement referred to in Section 1(a) hereof and all amendments thereto, (ii) the cost of preparation, issuance and delivery of the Notes and Warrants, (iii) the fees, disbursements and expenses of the Company’s accountants, of the Trustee and its counsel and of any warrant agent and its counsel, (iv) the cost of qualification of the Notes and Warrants under State securities laws in accordance with the provisions of Section 3(c) hereof, including filing fees and the fees and disbursements of counsel for the Agents in connection therewith and in connection with the preparation of any Blue Sky Memorandum, (v) the cost of printing and delivering to each Agent in quantities as hereinabove stated copies of the registration statement referred to in Section 1(a) hereof and all amendments thereto, the Prospectus, any amendment or supplement to the Prospectus, any Issuer Free Writing Prospectus, and the Prospectus as

 

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amended or supplemented, (vi) the cost of printing and delivering to each Agent copies of the Indenture, the Warrant Agreement and any Blue Sky Memorandum, (vii) any fees charged by rating agencies for the rating of the Notes, (viii) the fees and expenses, if any, incurred with respect to any filing with the National Association of Securities Dealers, Inc., and (ix) the cost of the printing or reproducing of this Agreement and any Terms Agreement.

 

5.                                       Each Agent’s obligations to solicit offers to purchase the Notes and Warrants as Agent of the Company and to purchase Notes and Warrants pursuant to any Terms Agreement shall be subject to the condition that all representations and warranties and other statements of the Company herein are, at the date hereof, at the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement and at each other Representation Date, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:

 

(a)                                  No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;

 

(b)                                 McDermott Will & Emery LLP, counsel for the Agents, shall have furnished to you at the Closing Time and at each Settlement Date with respect to any Terms Agreement such opinion or opinions, dated the Closing Time and such Settlement Date, respectively, with respect to the incorporation of the Company, the validity of the Indenture, the Notes, the Registration Statement, the Prospectus as amended or supplemented, and other related matters as you may reasonably request, and such counsel shall have received such documents, certificates and information as they may reasonably request to enable them to pass upon such matters;

 

(c)                                  Counsel for the Company shall have furnished to you at the Closing Time and at each Settlement Date with respect to any Terms Agreement his written opinion, dated the Clo