Exhibit 1.1
EXECUTION VERSION
CSX CORPORATION
$600,000,000 6.250% Notes Due 2015
$400,000,000 7.450% Notes Due 2038
UNDERWRITING AGREEMENT
Dated:
March 24, 2008
CSX
CORPORATION
$600,000,000
6.250% Notes Due 2015
$400,000,000
7.450% Notes Due 2038
UNDERWRITING
AGREEMENT
March
24, 2008
Barclays
Capital Inc.
Citigroup
Global Markets Inc.
Credit
Suisse Securities (USA) LLC
Morgan
Stanley & Co. Incorporated
As
Representatives of the Underwriters
c/o
Barclays Capital Inc.
200 Park
Avenue
New York, N.Y.
10166
Citigroup Global Markets
Inc.
388 Greenwich
Street
New York, N.Y.
10013
Credit Suisse Securities
(USA) LLC
Eleven Madison
Avenue
New York, N.Y.
10010-3629
Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, N.Y.
10036
Ladies
and Gentlemen:
CSX CORPORATION, a Virginia
corporation (the “ Company
”), proposes to issue and sell to the parties named in
Schedule II hereto (the “ Underwriters
”), for whom you are acting as representatives (the
“ Representatives
”), $600,000,000 principal amount of its 6.250% Notes
due 2015 (the “ Notes due
2015 ”) and $400,000,000 principal amount of its
7.450% Notes due 2038 (the “ Notes due
2038 ” and, together with the Notes due 2015,
the “Notes”). The Notes are to be
issued under an indenture (the “ Indenture
”) dated as of August 1, 1990, between the Company and
The Bank of New York Trust Company, N.A., successor to
JPMorgan Chase Bank, N.A., formerly The Chase Manhattan Bank,
as trustee (the “ Trustee
”), as supplemented and amended by the First
Supplemental Indenture dated as of June 15, 1991, the Second
Supplemental Indenture dated as of May 6, 1997, the Third
Supplemental Indenture dated as of April 22, 1998, the Fourth
Supplemental Indenture dated as of October 30, 2001, the
Fifth Supplemental Indenture dated as of October 27, 2003,
the Sixth Supplemental Indenture dated as of September 23,
2004 and the Seventh Supplemental Indenture dated as of April
25, 2007.
In connection with the sale
of the Notes, the Company has prepared and filed with the
Securities and Exchange Commission (the “ Commission
”) a registration statement on Form S-3ASR
(Registration No. 333-140732) for the registration of debt
securities, including the Notes, trust preferred securities
(and related guarantee and agreement as to expenses and
liabilities), common stock, preferred stock, depositary
shares and securities warrants, under the Securities Act of
1933, as amended (the “ Securities
Act ”). On December 10, 2007, the
Company and CSX Transportation, Inc., a Virginia corporation,
filed with the Commission Post-Effective Amendment No. 1 to
the Registration Statement, including the related Base
Prospectus, which Post-Effective Amendment No. 1 became
effective upon filing under Rule 462(e) and 462(f) under the
Securities Act. Such amended Registration
Statement covers the registration of the Notes under the
Securities Act. Any reference herein to the
Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer
to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed
under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Final
Prospectus, as the case may be; and any reference herein to
the terms “amend,” “amendment” or
“supplement” with respect to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or
the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act
(as defined in Section 1(b) hereof) after the
Effective Date of the Registration Statement or the issue
date of the Base Prospectus, any Preliminary Prospectus or
the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference. The Company
hereby confirms that it has authorized the use of the Base
Prospectus, any Preliminary Prospectus and the Final
Prospectus, and any amendment or supplement thereto, in
connection with the offer and sale of the Notes by the
Underwriters. Certain terms used herein are
defined in Section 18 hereof.
1.
Representations
and Warranties . The Company represents and
warrants to, and agrees with, each Underwriter as set forth
below in this Section 1. Any reference to persons
acting on behalf of the Company does not include any of the
Underwriters, with respect to whom the Company makes no
representation.
(a) The
Company meets the requirements for use of Form S-3ASR under
the Securities Act and has prepared and filed with the
Commission an automatic shelf registration statement as
defined in Rule 405, on Form S-3ASR, including a related Base
Prospectus, for registration under the Securities Act of the
offering and sale of the Notes. Such Registration
Statement, including any amendments thereto filed prior to
the Applicable Time, has become effective. The
Company may have filed with the Commission, as part of an
amendment to the Registration Statement or pursuant to Rule
424(b), one or more preliminary prospectus supplements
relating to the Notes, each of which has previously been
electronically furnished to you. The Company will
file with the Commission a final prospectus supplement
relating to the Notes in accordance with Rule
424(b). As filed, such final prospectus supplement
shall contain all information required by the Securities Act
and the rules thereunder, and, except to the extent the
Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to
you prior to the Applicable Time or, to the extent not
completed at the Applicable Time, shall contain only such
specific additional information and other changes (beyond
that contained in the Base Prospectus and any Preliminary
Prospectus) as the Company has advised you, prior to the
Applicable Time, will be included or made
therein. The Registration Statement, at the
Applicable Time, meets the requirements set forth in Rule
415(a)(1)(x).
(b) On
the Effective Date, the Registration Statement did, and the
Final Prospectus (and any supplement thereto), as of its date
and on the Closing Date (as defined in Section 3 hereof),
will, comply in all material respects with the requirements
of the Securities Act and the Securities Exchange Act of
1934, as amended (the “ Exchange
Act ”) and the Trust Indenture Act of 1939, as
amended (the “ TIA
”), and the rules
and regulations of the Commission promulgated
thereunder. On the Effective Date, the
Registration Statement did not, 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. On the
Effective Date and on the Closing Date, the Indenture did or
will comply in all material respects with the applicable
requirements of the TIA and the rules
thereunder. On the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) 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 (i) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification
(Form T-1) under the TIA of the Trustee or (ii) the
information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto)
in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the
Registration Statement or the Final Prospectus (or any
supplement thereto), it being understood and agreed that the
only such information furnished by or on behalf of any
Underwriters consists of the information described as such in
Section 7 hereof.
(c) As
of the Applicable Time, (i) the Disclosure Package and (ii)
each electronic roadshow when taken together as a whole with
the Disclosure Package, do not contain any untrue statement
of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply
to statements in or omissions from the Disclosure Package
based upon and in conformity with written information
furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being
understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the
information described as such in Section 7
hereof.
(d) (i)
At the time of filing the Registration Statement, (ii) at the
time of the most recent amendment thereto for the purposes of
complying with Section 10(a)(3) of the Securities Act
(whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Sections 13 or 15(d) of
the Exchange Act or form of prospectus), (iii) at the time
the Company or any person acting on its behalf (within the
meaning, for this clause only, of Rule 163(c)) made any offer
relating to the Notes in reliance on the exemption in Rule
163, and (iv) at the Applicable Time (with such
date being used as the determination date for purposes of
this clause (iv)), the Company was or is (as the case may be)
a “well-known seasoned issuer” as defined in Rule
405. The Company agrees to pay the fees required
by the Commission relating to the Notes 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).
(e) (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 Applicable Time (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), without taking account of
any determination by the Commission pursuant to Rule 405 that
it is not necessary that the Company be considered an
Ineligible Issuer.
(f) Each
Issuer Free Writing Prospectus and the final term sheet
prepared and filed pursuant to Section 4(I)(c) hereto does
not include any information that conflicts with the
information contained in the Registration Statement,
including any document incorporated therein and any
prospectus supplement deemed to be a part thereof that has
not been superseded or modified. The foregoing
sentence does not apply to statements in or omissions from
any Issuer Free Writing Prospectus based 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 or on behalf of any Underwriter
consists of the information described as such in Section 7
hereof.
(g) Since
the respective dates as of which information is given in the
Registration Statement, the Disclosure Package and the Final
Prospectus, except as may otherwise be stated therein or
contemplated thereby, there has been no material adverse
change in the condition, financial or otherwise, or in the
earnings, business or properties of the Company and its
subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business.
(h) The
Company has not taken and will not take, directly or
indirectly, any action designed to or which has constituted
or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Notes
(other than any stabilization done by the Underwriters, as to
which the Company makes no representation).
(i) The
Company is not an “investment company” within the
meaning of the Investment Company Act of 1940, as amended
(the “ Investment
Company Act ”), without taking account of any
exemption arising out of the number of holders of the
Company’s securities.
(j) The
information, if any, provided by the Company pursuant to
Section 4(I)(g) hereof will not, at the date thereof,
contain any untrue statement of a 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.
(k) This
Agreement has been duly authorized, executed and delivered by
the Company.
(l) The
Indenture has been duly authorized, executed and delivered by
the Company; the Indenture (assuming that the Indenture has
been duly authorized, executed and delivered by the Trustee)
constitutes a valid and legally binding obligation of the
Company enforceable against the Company in accordance with
its 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; the
Notes have been duly authorized, and when executed, issued
and delivered by the Company and authenticated in the manner
provided in the Indenture, will constitute valid and legally
binding obligations of the Company enforceable against the
Company 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; and the Notes conform to the description thereof
contained in the Disclosure Package and the Final
Prospectus.
(m) No
consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required for
the consummation of the transactions contemplated herein,
except for a filing of any Preliminary Prospectus and the
Final Prospectus under Rule 424(b) of the Securities Act and
such as may be required under state securities
laws.
(n) The
execution, delivery and performance of this Agreement and the
issuance and sale of the Notes and compliance with the terms
and provisions thereof will not result in a material breach
or violation of any of the terms and provisions of, or
constitute a default under, any statute, rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Company or any Significant Subsidiary
(as defined below) of the Company or any of their properties
or any agreement or instrument to which the Company or any
Significant Subsidiary of the Company is a party or by which
the Company or any Significant Subsidiary of the Company is
bound or to which any of the properties of the Company or any
Significant Subsidiary of the Company is subject, or the
charter, by-laws or operating agreement, as the case may be,
of the Company or any Significant Subsidiary of the
Company.
2.
Purchase and
Sale . Subject to the terms and conditions
and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at a purchase price of
99.318% of the principal amount thereof, the principal amount
of the Notes due 2015, plus accrued interest, if any, from
March 27, 2008, set forth opposite such Underwriter’s
name in Schedule II hereto.
Subject to the terms and
conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to
each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at a purchase
price of 99.052% of the principal amount thereof, the
principal amount of the Notes due 2038, plus accrued
interest, if any, from March 27, 2008, set forth opposite
such Underwriter’s name in Schedule II
hereto.
3.
Delivery and
Payment . Delivery of and payment for the
Notes shall be made at 10:00 AM, New York City time, on March
27, 2008, or such later date (not later than seven full
Business Days thereafter) as the Representatives shall
designate, which date and time may be postponed by agreement
between the Representatives and the Company or as provided in
Section 8 hereof (such date and time of delivery and payment
being herein called the “ Closing
Date ”). Delivery of the Notes shall
be made to the Representatives for the respective accounts of
the Underwriters against payment by the Underwriters through
the Representatives of the purchase price thereof to or upon
the order of the Company by wire transfer of Federal funds or
other immediately available funds or in such other manner of
payment as may be agreed by the Company and the
Representatives.
Delivery of any Notes to be
issued in definitive certificated form shall be made on the
Closing Date at such location, and in such names and
denominations, as the Representatives shall designate at
least one Business Day in advance of the Closing
Date. The Company agrees to have the Notes
available for inspection, checking and packaging by the
Representatives in New York, New York, not later than 1:00 PM
on the Business Day prior to the Closing Date. The
closing for the purchase and sale of the Notes shall occur at
the office of Shearman & Sterling LLP, 599 Lexington
Avenue, New York, New York 10022 (“ Counsel for the
Underwriters ”) or such other place as the
parties hereto shall agree.
The Notes due 2015 will be
issued in the form of two fully registered global Notes in
the denominations of $500,000,000 and $100,000,000 and the
Notes due 2038 will be issued in the form of one fully
registered global Note in the denomination of $400,000,000,
respectively, each of which will be deposited with, or in
accordance with the instructions of, The Depository Trust
Company, New York, New York (“ DTC
”) and registered in the name of DTC’s
nominee. Except as provided in the Indenture,
beneficial owners of the Notes will not have the right to
have the Notes registered in their names, will not receive or
be entitled to receive physical delivery of such Notes, and
will not be considered the owners or holders thereof under
the Indenture.
4.
Agreements
. (I) The Company agrees with each Underwriter
that:
(a) The
Company will furnish to each Underwriter and to Counsel for
the Underwriters, without charge, during the period referred
to in paragraph (e) below, as many copies of each of the
Preliminary Prospectus, any Issuer Free Writing Prospectus
and any amendments and supplements thereto (to be delivered
electronically) and the Final Prospectus, as it may
reasonably request. The Company will pay the
expenses of printing or other production of all documents
relating to the offering.
(b) Prior
to the termination of the offering of the Notes, the Company
will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus or any Preliminary
Prospectus) to the Base Prospectus unless the Company has
furnished you a copy for your review prior to filing and will
not file any such proposed amendment or supplement to which
you reasonably object. The Company will promptly
advise the Representatives (i) when the Final Prospectus, and
any supplement thereto, shall have been filed (if required)
with the Commission pursuant to Rule 424(b), (ii) when,
prior to termination of the offering of the Notes, any
amendment to the Registration Statement shall have been filed
or become effective, (iii) of any request by the Commission
or its staff for any amendment of the Registration Statement,
or any Rule 462(b) Registration Statement, or for any
supplement to the Final 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 of any notice objecting to its use or the
institution or threatening of any proceeding for that purpose
and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the
Notes for sale in any jurisdiction or the institution 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 or objection to the use of the
Registration Statement 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 s
practicable.
(c) To
prepare a final term sheet, in the form of Schedule I hereto,
containing solely a description of final terms of the Notes
and the offering thereof, in a form approved by you and to
file such term sheet pursuant to Rule 433(d) within the time
required by such Rule.
(d) If,
at any time prior to the filing of the Final Prospectus
pursuant to Rule 424(b), any event occurs as a result of
which the Disclosure Package would include any untrue
statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of
circumstances under which they were made at such time not
misleading, the Company will (i) notify promptly the
Representatives so that any use of the Disclosure Package may
cease until it is amended or supplemented; (ii) amend or
supplement the Disclosure Package to correct such statement
or omission; and (iii) supply any amendment or supplement to
you in such quantities as you may reasonably
request.
(e) If
at any time prior to the earlier of (i) completion of the
sale of the Notes by the Underwriters (as determined by the
Representatives) or (ii) six months from the date hereof, any
event occurs as a result of which the Final Prospectus, as
then amended or supplemented, would include any untrue
statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading, or if it should be necessary to amend or
supplement the Final Prospectus (including any document
incorporated by reference therein which was filed under the
Exchange Act) to comply with the Exchange Act or the rules
thereunder or other applicable law, including in connection
with the use or delivery of the Final Prospectus, the Company
will promptly notify the Representatives of the same and,
subject to the requirements of paragraph (b) of this Section
4, will prepare and provide to the Representatives pursuant
to paragraph (a) of this Section 4 an amendment or supplement
which will correct such statement or omission or effect such
compliance and, if such an amendment or supplement is
required to be filed under the Exchange Act and is to be
incorporated by reference in the Final Prospectus, will file
such amendment or supplement with the
Commission. The Representatives will promptly
advise the Company, in writing, of the completion of the
initial distribution of the Notes.
(f) The
Company will, during the period when the Final Prospectus is
required to be delivered under the Securities Act and during
which the Company is subject to the reporting requirements of
Section 13 or Section 15(d) of the Exchange Act, timely file
all Annual Reports on Form 10-K, Quarterly Reports on Form
10-Q, Current Reports on Form 8-K, and any other reports,
statements, documents, registrations, filings or submissions
required to be filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act.
(g) The
Company will make generally available to its security holders
as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement
(in form complying with the provisions of Rule 158 under the
Securities Act) covering a twelve-month period beginning not
later than the first day of the Company’s fiscal
quarter next following the “effective date” (as
defined in such Rule 158) of the Registration
Statement.
(h) The
Company will cooperate with the Representatives and use its
reasonable best efforts to permit the Notes to be eligible
for clearance and settlement through DTC.
(i) The
Company agrees that, unless it has obtained the prior written
consent of the Representatives, and each Underwriter,
severally and not jointly, agrees with the Company that,
unless it has obtained the prior written consent of the
Company, it has not made and will not make any offer relating
to the Notes that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a “free
writing prospectus” (as defined in Rule 405) required
to be filed by the Company with the Commission or retained by
the Company under Rule 433, other than the information
contained in the final term sheet prepared and filed pursuant
to Section 4(I)(c) hereto; provided that the prior written
consent of the parties hereto shall be deemed to have been
given in respect of the Free Writing Prospectuses included in
Schedule III hereto. Any such free writing
prospectus consented to by the Representatives or the Company
is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company agrees that (x) it
has treated and will treat, as the case may be, each
Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus and (y) it has complied and will comply, as
the case may be, with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the Commission,
legending and record keeping.
(II) Each
Underwriter, on behalf of itself and each of its affiliates
that participates in the initial distribution of the Notes,
severally represents to and agrees with the Company that it
and each such affiliate:
(a) in
relation to each Member State of the European Economic Area
which has implemented the Prospectus Directive (each, a
Relevant Member State), with effect from and including the
date on which the Prospectus Directive is implemented in that
Relevant Member State (the Relevant Implementation Date), has
not made and will not make an offer of Notes to the public in
that Relevant Member State prior to the publication of a
prospectus in relation to the Notes which has been approved
by the competent authority in that Relevant Member State or,
where appropriate, approved in another Relevant Member State
and notified to the competent authority in that Relevant
Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including
the Relevant Implementation Date, make an offer of Notes to
the public in that Relevant Member State at any
time,
(i) to legal entities which
are authorized or regulated to operate in the financial
markets or, if not so authorized or regulated, whose
corporate purpose is solely to invest in
securities;
(ii) to any legal entity
which has two or more of (1) an average of at least 250
employees during its last financial year; (2) a total balance
sheet of more than €43,000,000; and (3) an annual net
turnover of more than €50,000,000, as shown in its last
annual or consolidated accounts;
(iii) to fewer than 100
natural or legal persons (other than qualified investors as
defined in the Prospectus Directive) subject to obtaining the
prior consent of the Representatives for any such offer;
or
(iv) in any other
circumstances which do not require the publication by the
Company of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For
the purposes of this provision, the expression an “offer
of Notes to the public” in relation to any Notes in any
Relevant Member State means the communication in any form and
by any means of sufficient information on the terms of the
offer and the Notes to be offered so as to enable an investor
to decide to purchase or subscribe the Notes, as the same may
be varied in that Member State by any measure implementing the
Prospectus Directive in that Member State, and the expression
“Prospectus Directive” means Directive 2003/71/EC
and includes any relevant implementing measure in each
Relevant Member State;
(b) has
only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or
inducement to engage in investment activity (within the
meaning of section 21 of the United Kingdom Financial
Services and Markets Act 2000, or “ FSMA
”) to persons who have professional experience in
matters relating to investments falling within Article 19(5)
of the Financial Services and Markets Act 2000 (Financial
Promotion) Order 2005 or in circumstances in which section 21
of FSMA does not apply to the Company; and has complied with,
and will comply with all applicable provisions of FSMA with
respect to anything done by it in relation to the Notes in,
from or otherwise involving the United Kingdom;
and
(c) will
not offer or sell any of the Notes directly or indirectly in
Japan or to, or for the benefit of any Japanese person or to
others, for re-offering or re-sale directly or indirectly in
Japan or to any Japanese person, except in each case pursuant
to an exemption from the registration requirements of, and
otherwise in compliance with, the Securities and Exchange Law
of Japan and any other applicable laws and regulations of
Japan. For purposes of this paragraph, "Japanese person"
means any person resident in Japan, including any corporation
or other entity organized under the laws of
Japan.
(III) Mitsubishi
UFJ Securities International plc, on behalf of itself and
each of its affiliates that participates in the initial
distribution of the Notes, represents to and agrees with the
Company that, to the extent that it intends to effect any
sales of the Notes in the United States, it will do so
through one or more U.S. registered broker-dealers as
permitted by Financial Industry Regulatory Authority
regulations.
5.
Conditions to
the Obligations of the Underwriters . The
obligations of the Underwriters to purchase the Notes shall
be subject to the accuracy of the representations and
warranties on the part of the Company contained herein at the
date and time that this Agreement is executed and delivered
by the parties hereto, at the Applicable Time, and at the
Closing Date and 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
Final Prospectus, and any supplement thereto, have been filed
in the manner and within the time period required by Rule
424(b); the final term sheet contemplated by Section 4(I)(c)
hereto, and any other material required to be filed by the
Company pursuant to Rule 433(d) under the Securities Act,
shall have been filed with the Commission within the
applicable time periods prescribed for such filings by Rule
433; and no stop order suspending the effectiveness of the
Registration Statement or any notice objecting to its use
shall have been issued and no proceedings for that purpose
shall have been instituted or threatened.
(b) &nb
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