Exhibit 99.2
CREDIT
SUISSE (USA), INC.
Debt
Securities
UNDERWRITING
AGREEMENT
1.
Introductory. Credit Suisse (USA), Inc., a Delaware
corporation (“ Company ”), proposes to issue and
sell from time to time certain of its unsecured debt securities
registered under the registration statement referred to in
Section 2(a) (“ Registered Securities
”). The Registered Securities will be issued under an
indenture, dated as of June 1, 2001 (“ Indenture
”), between the Company and The Bank of New York (as
successor to The Chase Manhattan Bank), as Trustee, in one or more
series, which series may vary as to interest rates, maturities,
redemption provisions, selling prices and other terms, with all
such terms for any particular series of the Registered Securities
being determined at the time of sale. Particular series of
the Registered Securities will be sold pursuant to a Terms
Agreement referred to in Section 3, for resale in accordance
with terms of offering determined at the time of sale.
The Registered
Securities involved in any such offering are hereinafter referred
to as the “ Offered Securities ”. The firm
or firms which agree to purchase the Offered Securities are
hereinafter referred to as the “ Underwriters ”
of such securities, and the representatives of the Underwriters, if
any, specified in a Terms Agreement referred to in Section 3
are hereinafter referred to as the “ Representatives
”; provided, however, that if the Terms Agreement does not
specify any representative of the Underwriters, the term
“Representatives”, as used in this Agreement (other
than in Sections 2(b), 6(c) and 7 and the second sentence
of Section 3), shall mean the Underwriters.
2.
Representations and Warranties of the Company . The
Company, as of the date of each Terms Agreement referred to in
Section 3, represents and warrants to, and agrees with, each
Underwriter that:
(a) Filing
and Effectiveness of Registration Statement; Certain Defined
Terms. The Company has filed with the Commission a
registration statement on Form S-3 (No. 333-131970),
including a related prospectus or prospectuses, covering the
registration of the Registered Securities under the Act, which has
become effective. “Registration Statement”
at any particular time means such registration statement in the
form then filed with the Commission, including any amendment
thereto, any document incorporated by reference therein and all
430B Information and all 430C Information with respect to such
registration statement, that in any case has not been superseded or
modified. “ Registration Statement ”
without reference to a time means the Registration Statement as of
the Effective Date. For purposes of this definition,
430B Information shall be
considered to
be included in the Registration Statement as of the time specified
in Rule 430B.
For purposes of
this Agreement:
“
430B Information ” means information included in
a prospectus then deemed to be a part of the Registration Statement
pursuant to Rule 430B(e) or retroactively deemed to be a part
of the Registration Statement pursuant to
Rule 430B(f).
“
430C Information ” means information included in a
prospectus then deemed to be a part of the Registration Statement
pursuant to Rule 430C.
“
Act ” means the Securities Act of 1933, as
amended.
“Applicable
Time” means the time and date so
stated in the Terms Agreement.
“
Closing Date” has the meaning defined in Section 3
hereof.
“
Commission ” means the Securities and Exchange
Commission.
“
Effective Date ” of the Registration Statement
relating to the Offered Securities means the time of the first
contract of sale for the Offered Securities.
“
Exchange Act ” means the Securities Exchange Act of
1934.
“
Final Prospectus ” means the Statutory Prospectus that
discloses the public offering price, other 430B Information
and other final terms of the Offered Securities and otherwise
satisfies Section 10(a) of the Act.
“General Use Issuer
Free Writing Prospectus” means any Issuer Free
Writing Prospectus that is intended for general distribution to
prospective investors, as evidenced by its being so specified in a
schedule to the Terms Agreement.
“Issuer Free Writing
Prospectus” means any “issuer
free writing prospectus,” as defined in Rule 433,
relating to the Offered Securities in the form filed or required to
be filed with the Commission or, if not required to be filed, in
the form retained in the Company’s records pursuant to
Rule 433(g).
“Limited Use Issuer
Free Writing Prospectus” means any Issuer Free
Writing Prospectus that is not a General Use Issuer Free Writing
Prospectus.
“
Rules and Regulations ” means the rules and
regulations of the Commission.
“
Securities Laws ” means, collectively, the
Sarbanes-Oxley Act of 2002 (“ Sarbanes-Oxley ”),
the Act, the Exchange Act, the Trust Indenture Act, the Rules and
Regulations, the auditing principles, rules, standards and
practices applicable to auditors of
“issuers”
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(as defined in
Sarbanes-Oxley) promulgated or approved by the Public Company
Accounting Oversight Board and, as applicable, the rules of the New
York Stock Exchange and the NASDAQ Stock Market (“
Exchange Rules ”).
“Statutory
Prospectus” with reference to any
particular time means the prospectus relating to the Offered
Securities that is included in the Registration Statement
immediately prior to that time, including all 430B Information
and all 430C Information with respect to the Registration
Statement. For purposes of the foregoing definition,
430B Information shall be considered to be included in the
Statutory Prospectus only as of the actual time that form of
prospectus (including a prospectus supplement) is filed with the
Commission pursuant to Rule 424(b) and not
retroactively.
“Terms
Agreement” means the Terms Agreement
referred to in Section 3 relating to the Offered
Securities.
“
Trust Indenture Act ” means the Trust Indenture Act of
1939.
Unless
otherwise specified, a reference to a “rule” is to the
indicated rule under the Act.
(b)
Compliance with Securities Act Requirements .
(i) (A) At the time the Registration Statement initially
became effective, (B) at the time of each amendment thereto for the
purposes of complying with Section 10(a)(3) of the Act
(whether by post-effective amendment, incorporated report or form
of prospectus), (C) on the Effective Date relating to the Offered
Securities and (D) on the Closing Date, the Registration Statement
conformed and will conform in all respects to the requirements of
the Act, the Trust Indenture Act and the Rules and Regulations and
did not and will not include any untrue statement 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
and (ii) (A) on its date, (B) at the time of filing the Final
Prospectus pursuant to Rule 424(b) and (C) on the Closing
Date, the Final Prospectus will conform in all respects to the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations, and will not include any untrue statement 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. The preceding sentence does not apply to
statements in or omissions from any such document based upon
written information furnished to the Company by any Underwriter
through the Representatives, if any, specifically for use therein,
it being understood and agreed that the only such information is
that described as such in the Terms Agreement.
(c)
Automatic Shelf Registration Statement. (i)
Well-Known Seasoned Issuer Status. (A) At the
time of initial filing of 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
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only, of
Rule 163(c)) made any offer relating to the Offered Securities
in reliance on the exemption of Rule 163, the Company was a
“well known seasoned issuer” as defined in
Rule 405, including not having been an
“ineligible issuer” as defined in
Rule 405.
(ii)
Effectiveness of Automatic Shelf Registration Statement
. The Registration Statement is an “automatic shelf
registration statement,” as defined in Rule 405, that
initially became effective within three years of the date of the
Terms Agreement. If immediately prior to the Renewal Deadline
(as hereinafter defined), any of the Offered Securities remain
unsold by the Underwriters, the Company will prior to the Renewal
Deadline file, if it has not already done so and is eligible to do
so, a new automatic shelf registration statement relating to the
Offered Securities, in a form satisfactory to the Lead Underwriter
(as defined in Section 3). If the Company is no longer
eligible to file an automatic shelf registration statement, the
Company will prior to the Renewal Deadline, if it has not already
done so, file a new shelf registration statement relating to the
Offered Securities, in a form satisfactory to the Lead Underwriter,
and will use its best efforts to cause such registration statement
to be declared effective within 180 days after the Renewal
Deadline. The Company will take all other action necessary or
appropriate to permit the public offering and sale of the Offered
Securities to continue as contemplated in the expired registration
statement relating to the Offered Securities. References
herein to the Registration Statement shall include such new
automatic shelf registration statement or such new shelf
registration statement, as the case may be. “
Renewal Deadline ” means the third anniversary of the
initial effective date of the Registration Statement.
(iii)
Eligibility to Use Automatic Shelf Registration Form .
The Company has not received from the Commission any notice
pursuant to Rule 401(g)(2) objecting to use of the automatic
shelf registration statement form. If at any time when
Offered Securities remain unsold by the Underwriters the Company
receives from the Commission a notice pursuant to
Rule 401(g)(2) or otherwise ceases to be eligible to use the
automatic shelf registration statement form, the Company will (i)
promptly notify the Lead Underwriter, (ii) promptly file a new
registration statement or post-effective amendment on the proper
form relating to the Offered Securities, in a form satisfactory to
the Lead Underwriter, (iii) use its best efforts to cause such
registration statement or post-effective amendment to be declared
effective as soon as practicable, and (iv) promptly notify the Lead
Underwriter of such effectiveness. The Company will take all
other action necessary or appropriate to permit the public offering
and sale of the Offered Securities to continue as contemplated in
the registration statement that was the subject of the
Rule 401(g)(2) notice or for which the Company has otherwise
become ineligible. References herein to the Registration
Statement shall include such new registration statement or
post-effective amendment, as the case may be.
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(iv) Filing
Fees . The Company has paid or shall pay the required
Commission filing fees relating to the Offered Securities within
the time required by Rule 456(b)(1) without regard to the
proviso therein and otherwise in accordance with Rules 456(b)
and 457(r).
(d)
Ineligible Issuer Status. (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 Offered Securities and (ii)
at the date of the Terms Agreement, the Company was not and is
not an “ineligible issuer,” as defined in
Rule 405, including (x) the Company or any of its
subsidiaries in the preceding three years not having been convicted
of a felony or misdemeanor or having been made the subject of a
judicial or administrative decree or order as described in
Rule 405 and (y) the Company in the preceding three years not
having been the subject of a bankruptcy petition or insolvency or
similar proceeding, not having had a registration statement be the
subject of a proceeding under Section 8 of the Act and not being
the subject of a proceeding under Section 8A of the Act in
connection with the offering of the Securities, all as described in
Rule 405.
(e) General
Disclosure Package. As of the Applicable Time, neither
(i) the General Use Issuer Free Writing Prospectus(es) issued at or
prior to the Applicable Time, the Statutory Prospectus identified
in a schedule to the Terms Agreement, and any other documents
listed or disclosures stated in a schedule to the Terms Agreement
to be included in the General Disclosure Package, all considered
together (collectively, the “General Disclosure
Package” ), nor (ii) any individual Limited Use Issuer
Free Writing Prospectus, when considered together with the General
Disclosure Package, included any untrue statement of a material
fact or omitted to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from any
Statutory Prospectus or any Issuer Free Writing Prospectus in
reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that
the only such information furnished by any Underwriter consists of
the information described as such in the Terms
Agreement.
(f) Issuer
Free Writing Prospectuses. 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 Offered
Securities or until any earlier date that the Company notified or
notifies the Lead Underwriter as described in the next sentence,
did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information then
contained in the Registration Statement. If at any time
following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which
such Issuer Free Writing Prospectus conflicted or would conflict
with the information then contained in the Registration Statement
or as a result of which such Issuer Free Writing
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Prospectus, if
republished immediately following such event or development, would
include an untrue statement of a material fact or omitted or would
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, (i) the Company has promptly
notified or will promptly notify the Lead Underwriter and
(ii) the Company has promptly amended or will promptly amend or
supplement such Issuer Free Writing Prospectus to eliminate or
correct such conflict, untrue statement or omission.
(g) Good
Standing of the Company. The Company has been duly
incorporated and is existing and in good standing under the laws of
the State of Delaware, with power and authority (corporate and
other) to own its properties and conduct its business as described
in the General Disclosure Package; and the Company is duly
qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification.
(h)
Subsidiaries. Each subsidiary of the Company has been
duly incorporated and is existing and in good standing under the
laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the General Disclosure Package; and
each subsidiary of the Company is duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions
in which its ownership or lease of property or the conduct of its
business requires such qualification; all of the issued and
outstanding capital stock of each subsidiary of the Company has
been duly authorized and validly issued and is fully paid and
nonassessable; and the capital stock of each subsidiary owned by
the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects.
(i)
Indenture; Offered Securities—Debt. The
Indenture has been duly authorized and has been duly qualified
under the Trust Indenture Act; the Offered Securities have been
duly authorized; and when the Offered Securities are delivered and
paid for pursuant to the Terms Agreement on the Closing Date or
pursuant to Delayed Delivery Contracts (as hereinafter defined),
the Indenture will have been duly executed and delivered, such
Offered Securities will have been duly executed, authenticated,
issued and delivered, will conform to the information in the
General Disclosure Package and to the description of such Offered
Securities contained in the Final Prospectus and the Indenture and
such Offered Securities will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles.
(j)
Listing. If specified in the Terms Agreement, the
Offered Securities have been approved for listing on the stock
exchange indicated in the Terms Agreement, subject to notice of
issuance.
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(k) Absence
of Further Requirements. No consent, approval,
authorization, or order of, or filing or registration with, any
person (including any governmental agency or body or any court) is
required for the consummation of the transactions contemplated by
the Terms Agreement (including the provisions of this Agreement) or
the Indenture in connection with the offering, issuance and sale of
the Offered Securities by the Company, except such as have been
obtained or made and such as may be required under state securities
laws.
(l) Title
to Property . Except as disclosed in the General
Disclosure Package, the Company and its subsidiaries have good and
marketable title to all real properties and all other properties
and assets owned by them, in each case free from liens, charges,
encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made
thereof by them; and except as disclosed in the General Disclosure
Package, the Company and its subsidiaries hold any leased real or
personal property under valid and enforceable leases with no terms
or provisions that would materially interfere with the use made or
to be made thereof by them.
(m) Absence
of Defaults and Conflicts Resulting from Transaction. The
execution, delivery and performance of the Indenture, the Terms
Agreement (including the provisions of this Agreement) and any
Delayed Delivery Contracts and the issuance and sale of the Offered
Securities and compliance with the terms and provisions thereof
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default or a Debt Repayment
Triggering Event (as defined below) under, or result in the
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, the
charter or by-laws of the Company or any of its subsidiaries,
any statute, rule, regulation or order of any governmental agency
or body or any court, domestic or foreign, having jurisdiction over
the Company or any of its subsidiaries or any of their properties,
or any agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the properties of the
Company or any of its subsidiaries is subject, or the charter or
by-laws of the Company or any such subsidiary, and the Company has
full power and authority to authorize, issue and sell the Offered
Securities as contemplated by the Terms Agreement (including the
provisions of this Agreement); a “ Debt Repayment Triggering Event
” means any event or condition that gives, or with the giving
of notice or lapse of time would give, the holder of any note,
debenture, or other evidence of indebtedness (or any person acting
on such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Company or any of its subsidiaries.
(n) Absence
of Existing Defaults and Conflicts . Neither the Company
nor any of its subsidiaries is in violation of its respective
charter or by-laws or in default (or with the giving of notice or
lapse of time would be in default) under any existing obligation,
agreement, covenant or condition contained in any indenture, loan
agreement, mort gage, lease
or other agreement or instrument to which any of them is a party or
by
7
which any of them is bound or to
which any of the properties of any of them is subject, except such
defaults that would not, individually or in the aggregate, result
in a material adverse effect on the condition (financial or
otherwise), results of operations, business, properties or
prospects of the Company and its subsidiaries taken as a whole
(“ Material Adverse Effect ”).
(o)
Authorization of Terms Agreement . The Terms Agreement
(including the provisions of this Agreement) and any Delayed
Delivery Contracts have been duly authorized, executed and
delivered by the Company.
(p)
Possession of Licenses and Permits . The Company and
its subsidiaries possess, and are in compliance with the terms of,
all adequate certificates, authorizations, franchises, licenses and
permits (“ Licenses ”) necessary or material to
the conduct of the business now conducted or proposed in the
General Disclosure Package to be conducted by them and have not
received any notice of proceedings relating to the revocation or
modification of any License that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(q) Absence
of Labor Dispute. No labor dispute with the employees of
the Company or any of its subsidiaries exists or, to the knowledge
of the Company, is imminent, that, in any such case, could have a
Material Adverse Effect.
(r)
Possession of Intellectual Property . The Company and
its subsidiaries own, possess or can acquire on reasonable terms,
adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other
intellectual property (collectively, “ intellectual
property rights ”) necessary to conduct the business now
operated by them, or presently employed by them, and have not
received any notice of infringement of or conflict with asserted
rights of others with respect to any intellectual property rights
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
Material Adverse Effect.
(s) Accurate
Disclosure . The statements in the General Disclosure
Package and the Final Prospectus so indicated in the Terms
Agreement, insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are
accurate and fair summaries of such legal matters, agreements,
documents or proceedings and present the information required to be
shown.
(t) Statistical and
Market Related Data. Any third party statistical
and market related data included or incorporated by reference in
the Registration Statement, a Statutory Prospectus or the General
Disclosure Package are based on or derived from sources that the
Company believes to be reliable and accurate.
8
(u) Internal
Controls and Compliance with the Sarbanes-Oxley Act .
Except as set forth in the General Disclosure Package, the Company,
its subsidiaries and the Company’s Board of Directors (the
“ Board ”) are in compliance with Sarbanes-Oxley
and all applicable Exchange Rules. The Company maintains a system
of internal controls, including, but not limited to, disclosure
controls and procedures, internal controls over accounting matters
and financial reporting, an internal audit function and legal and
regulatory compliance controls (collectively, “ Internal
Controls ”) that comply with the Securities Laws and are
sufficient to provide reasonable assurances that (i) transactions
are executed in accordance with management’s general or
specific authorizations, (ii) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with the generally
accepted accounting principles in the United States (“
U.S. GAAP ”) and to maintain accountability for
assets, (iii) access to assets is permitted only in accordance with
management’s general or specific authorization, (iv) the
recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences and (v) the Company applies the
corporate governance guidelines adopted by Credit Suisse
Group. The Internal Controls are, or upon consummation of the
offering of the Offered Securities will be, overseen by the Board
in accordance with Exchange Rules. The Company has not
publicly disclosed or reported to the Board, and within the next
90 days the Company does not
reasonably expect to publicly disclose or report to the Board, a
material weakness, change in Internal Controls or fraud involving
management or other employees who have a significant role in
Internal Controls (each, an “ Internal Control Event
”), any violation of, or failure to comply with, the
Securities Laws, or any matter which, if determined adversely,
would have a Material Adverse Effect.
(v)
Litigation. Except as disclosed in the General
Disclosure Package, there are no pending actions, suits or
proceedings (including any inquiries or investigations by any court
or governmental agency or body, domestic or foreign) against or
affecting the Company, any of its subsidiaries or any of their
respective properties that, if determined adversely to the Company
or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect, or would materially and adversely
affect the ability of the Company to perform its obligations under
the Indenture, the Terms Agreement (including the provisions of
this Agreement) or any Delayed Delivery Contracts, or which are
otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings (including
any inquiries or investigations by any court or governmental agency
or body, domestic or foreign) are threatened or, to the
Company’s knowledge, contemplated.
(w)
Financial Statements . The financial statements
included in the Registration Statement and the General Disclosure
Package present fairly the financial position of the Company and
its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and,
except as otherwise disclosed in the General Disclosure Package,
such financial statements have been prepared in
conformity
9
with U.S. GAAP
applied on a consistent basis; any schedules included in the
Registration Statement present fairly the information required to
be stated therein; and, if the Registration Statement and the
General Disclosure Package include or incorporate pro forma
financial information, the assumptions used in preparing the pro forma
financial information included in the Registration Statement and
the General Disclosure
Package provide a reasonable basis for presenting the
significant effects directly attributable to the transactions or
events described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma columns
therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts .
(x) No
Material Adverse Change in Business. Except as disclosed
in the General Disclosure Package, since the end of the period
covered by the latest audited financial statements
included in the General Disclosure Package
(i) there has been no change, nor any development or event
involving a prospective change, in the condition (financial or
otherwise), results of operations, business, properties or
prospects of the Company and its subsidiaries, taken as a whole,
that is material and adverse, (ii) except as disclosed in or
contemplated by the General Disclosure Package, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock and
(iii) except as disclosed in or contemplated by the General
Disclosure Package, there has been no material adverse change in
the capital stock, short-term indebtedness, long-term indebtedness,
net current assets or net assets of the Company and its
subsidiaries.
(y) Investment
Company Act . The Company is not and, after giving effect
to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the General
Disclosure Package, will not be an “investment company”
as defined in the Investment Company Act of 1940 (the “
Investment Company Act ”).
(z) Ratings
. No “nationally recognized statistical rating
organization” as such term is defined for purposes of
Rule 436(g)(2) (i) has imposed (or has informed the
Company that it is considering imposing) any condition (financial
or otherwise) on the Company’s retaining any rating assigned
to the Company or any securities of the Company or (ii) has
indicated to the Company that it is considering any of the actions
described in Section 6(c)(ii) hereof.
3.
Purchase, Sale and Delivery of Offered Securities .
The obligation of the Underwriters to purchase the Offered
Securities will be evidenced by an agreement or exchange of other
written communications (“ Terms Agreement ”) at
the time the Company determines to sell the Offered
Securities. The Terms Agreement will incorporate by reference
the provisions of this Agreement, except as otherwise provided
therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal
amount to be purchased by each Underwriter, the purchase price to
be paid by the Underwriters and the terms of the Offered
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Securities not
already specified in the Indenture, including, but not limited to,
interest rate, maturity, any redemption provisions and any sinking
fund requirements and whether any of the Offered Securities may be
sold to institutional investors pursuant to Delayed Delivery
Contracts (as defined below). The Terms Agreement will also
specify the time and date of delivery and payment (such time and
date, or such other time not later than seven full business days
thereafter as the Underwriter first named in the Terms Agreement
(the “ Lead Underwriter ”) and the Company agree
as the time for payment and delivery, being herein and in the Terms
Agreement referred to as the “ Closing Date ”),
the place of delivery and payment and any details of the terms of
offering that should be reflected in the prospectus supplement
relating to the offering of the Offered Securities. For
purposes of Rule 15c6-1 under the Exchange Act, the Closing
Date (if later than the otherwise applicable settlement date) shall
be the date for payment of funds and delivery of securities for all
the Offered Securities sold pursuant to the offering, other than
Contract Securities for which payment of funds and delivery of
securities shall be as hereinafter provided. The obligations
of the Underwriters to purchase the Offered Securities will be
several and not joint. It is understood that the Underwriters
propose to offer the Offered Securities for sale as set forth in
the Final Prospectus.
If the Terms
Agreement provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Offered Securities pursuant to
delayed delivery contracts substantially in the form of
Annex I attached hereto (“ Delayed Delivery
Contracts ”) with such changes therein as the Company may
authorize or approve. Delayed Delivery Contracts are to be
with institutional investors, including commercial and savings
banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. On the Closing Date
the Company will pay, as compensation, to the Representatives for
the accounts of the Underwriters, the fee set forth in such Terms
Agreement in respect of the principal amount of Offered Securities
to be sold pursuant to Delayed Delivery Contracts (“
Contract Securities ”). The Underwriters will
not have any responsibility in respect of the validity or the
performance of Delayed Delivery Contracts. If the Company
executes and delivers Delayed Delivery Contracts, the Contract
Securities will be deducted from the Offered Securities to be
purchased by the several Underwriters and the aggregate principal
amount of Offered Securities to be purchased by each Underwriter
will be reduced pro rata in proportion to the principal amount of
Offered Securities set forth opposite each Underwriter’s name
in such Terms Agreement, except to the extent that the Lead
Underwriter determines that such reduction shall be otherwise than
pro rata and so advise the Company. The Company will advise
the Lead Underwriter not later than the business day prior to the
Closing Date of the principal amount of Contract
Securities.
The Offered
Securities delivered to the Underwriters on the Closing Date will
be in a form reasonably acceptable to the Lead
Underwriter.
4.
Certain Agreements of the Company . The Company agrees
with the several Underwriters that it will furnish to counsel for
the Underwriters, one signed copy of the registration
statement
11
relating to
the Registered Securities, including all exhibits, in the form it
became effective and of all amendments thereto and that, in
connection with each offering of Offered Securities:
(a) Filing
of Prospectuses. The Company has filed or will file each
Statutory Prospectus (including the Final Prospectus) pursuant to
and in accordance with Rule 424(b)(2) (or, if applicable and
consented to by the Lead Underwriter, subparagraph (5)) not later
than the second business day following the earlier of the date it
is first used or the date of the Terms Agreement. The Company
has complied and will comply with Rule 433.
(b) Filing
of Amendments; Response to Commission Requests. The
Company w
