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Exhibit 4.1
EXECUTED VERSION
GENERAL DYNAMICS CORPORATION
Debt Securities
UNDERWRITING AGREEMENT
December 8, 2008
To the Representatives named in
Schedule I hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
1. Introduction . General Dynamics Corporation, a
Delaware corporation (the " Company "), proposes, subject to
the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule II hereto (the " Underwriters
"), for whom you are acting as Representatives (the "
Representatives "), the principal amount of its debt
securities identified in Schedule I hereto (the " Notes "),
to be unconditionally guaranteed by the subsidiaries of the Company
identified on Schedule IV hereto (collectively, the "
Guarantors " and, together with the Company, the "
Issuers "). The Securities will be issued pursuant to the
indenture dated as of August 27, 2001, by and among the
Company, the Guarantors thereunder and The Bank of New York Mellon
(formerly The Bank of New York), as trustee (the " Indenture
"). The obligations of the Company under the Indenture and the
Notes will be unconditionally guaranteed (the " Guarantees "
and together with the Notes, the " Securities "), on a joint
and several basis, by each of the Guarantors in accordance with the
terms of the Indenture.
The Issuers have prepared and filed with the Securities and
Exchange Commission (the " Commission ") under the
Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder (collectively, the " Securities
Act ") a registration statement on Form S-3 (File
No. 333-155980), including a prospectus (the " Basic
Prospectus "), relating to debt securities and guarantees
thereof to be issued from time to time by the Issuers. The Issuers
have also filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the
Commission a prospectus supplement specifically relating to the
Securities pursuant to Rule 424 under the Securities Act (the "
Prospectus Supplement "). The term " Registration
Statement " means the registration statement, as amended at the
time it becomes effective, including the information, if any,
deemed pursuant to Rule 430A, 430B or 430C under the Securities Act
to be part of the registration statement at the time of its
effectiveness (" Rule 430 Information "). The term "
Prospectus " means the Basic Prospectus as supplemented by
the prospectus supplement specifically relating to
the Securities in the form first used (or made
available upon request of purchasers pursuant to Rule 173 under the
Securities Act) in connection with confirmation of sales of the
Securities. The term " Preliminary Prospectus " means the
preliminary prospectus supplement specifically relating to the
Securities together with the Basic Prospectus. As used herein, the
terms "Basic Prospectus," "Prospectus" and "Preliminary Prospectus"
shall include in each case the documents, if any, incorporated by
reference therein. The terms "supplement," "amendment" and "amend"
as used herein with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include any documents filed by the Company under the
Securities and Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder (the " Exchange Act
") subsequent to the date of the Underwriting Agreement which are
deemed to be incorporated by reference therein. For purposes of
this Agreement, the term " Effective Time " means the
effective date of the Registration Statement with respect to the
offering of Securities, as determined for the Company pursuant to
Section 11 of the Securities Act and Item 512 of
Regulation S-K, as applicable.
At or prior to the time when sales of the Securities will be
first made (the " Time of Sale "), the Company will prepare
certain information (collectively, the " Time of Sale
Information ") which information will be identified in Schedule
III to the Underwriting Agreement for such offering of Securities
as constituting part of the Time of Sale Information.
The Issuers hereby agree with the Underwriters as follows:
2. Representations and Warranties of the Issuers .
(a) The Company represents and warrants to and agrees with each
of the Underwriters that:
(i) The Registration Statement is an "automatic shelf
registration statement" as defined under Rule 405 of the Securities
Act that has been filed with the Commission not earlier than three
years prior to the date hereof; 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 Securities Act has been received by the Company. No order
suspending the effectiveness of the Registration Statement has been
issued by the Commission and no proceeding for that purpose or
pursuant to Section 8A of the Securities Act against the
Company or related to the offering has been initiated or threatened
by the Commission; as of the Effective Time, the Registration
Statement complied in all material respects with the Securities Act
and the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "
Trust Indenture Act "), and did not or will not
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contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading;
and as of the date of the Prospectus and any amendment or
supplement thereto and as of the Closing Date, the Prospectus
complied in all material respects with the Securities Act and did
not and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided that the Company makes no representation and
warranty with respect to (i) that part of the Registration
Statement that constitutes the Statement of Eligibility and
Qualification (Form T-1) of the Trustee under the Trust Indenture
Act or (ii) any statements or omissions in the Registration
Statement and the Prospectus and any amendment or supplement
thereto made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use
therein.
(ii) The Time of Sale Information, at the Time of Sale and at
the Closing Date 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 the Company makes no representation and warranty with respect
to any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the
Representatives expressly for use in such Time of Sale
Information.
(iii) The Issuers (including their agents and representatives,
other than the Underwriters in their capacity as such) have not
prepared, made, used, 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 Securities Act)
that constitutes an offer to sell or solicitation of an offer to
buy the Securities (each such communication by the Company or its
agents and representatives (other than a communication referred to
in clauses (i), (ii) and (iii) below) an " Issuer Free
Writing Prospectus ") other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of
the Securities Act or Rule 134 under the Securities Act,
(ii) the Preliminary Prospectus, (iii) the Prospectus,
(iv) the documents, other than the Preliminary Prospectus,
listed on Schedule III to the Underwriting Agreement as
constituting part of
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the Time of Sale Information and (v) any
electronic road show or other written communications, in each case
approved in writing in advance by the Representatives. Each Issuer
Free Writing Prospectus complied in all material respects with the
Securities Act, has been or will be (within the time period
specified in Rule 433) filed in accordance with the Securities Act
(to the extent required thereby) and, when taken together with the
Preliminary Prospectus accompanying, or delivered prior to delivery
of, or filed prior to the first use of such Issuer Free Writing
Prospectus, did not, and at the Closing 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 of the circumstances under which they were made, not
misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in each
such Issuer Free Writing Prospectus in reliance upon and in
conformity with information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the
Representatives expressly for use in any Issuer Free Writing
Prospectus.
(iv) The documents incorporated by reference in the Registration
Statement, the Prospectus and the Time of Sale Information when
filed with the Commission, conformed or will conform, as the case
may be, in all material respects with the requirements of the
Exchange Act, and 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, in the
light of the circumstances under which they were made, not
misleading;
(v) The Securities have been duly authorized by the Company; the
Guarantees have been duly authorized by the applicable Guarantors;
and when the Securities are delivered and paid for pursuant to this
Agreement on the Closing Date (as defined below) assuming due
authentication by the trustee under the Indenture, such Securities
will have been duly executed, issued and delivered by the Issuers
and will conform in all material respects to the description
thereof contained in the Registration Statement, the Time of Sale
Information and the Prospectus and the provisions of the Indenture
and will constitute valid and legally binding obligations of the
Issuers, in each case enforceable in accordance with their
respective 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.
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(vi) Since the date as of which information is
given in the Registration Statement, the Time of Sale Information
and the Prospectus, (a) there has not been any material
adverse change, or any development reasonably likely to have a
material adverse change, in the condition (financial or otherwise),
financial position, stockholders’ equity or results of
operations of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of
business, and (b) there have been no transactions entered into
by the Company or any of its subsidiaries which, individually or in
the aggregate, are material to the Company and its subsidiaries,
considered as one enterprise, other than those transactions in the
ordinary course of business, except, in each case, as otherwise set
forth or contemplated in the Registration Statement, the Time of
Sale Information and the Prospectus.
(vii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as
described in the Registration Statement, the Time of Sale
Information and the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such
qualification, except where the failure to be so qualified is not
reasonably likely to have a material adverse change in the
condition (financial or otherwise), financial position,
stockholders’ equity or results of operations of the Company
and its subsidiaries, considered as one enterprise.
(viii) Each Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as
described in the Registration Statement, the Time of Sale
Information and the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such
qualification, except where the failure to be so qualified is not
reasonably likely to have a material adverse change in the
condition (financial or otherwise), financial position, or results
of operations of the applicable Guarantor and its subsidiaries,
considered as one enterprise.
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(ix) The Company has an authorized capitalization
as set forth in the Registration Statement, the Time of Sale
Information and the Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable; and all of the
issued shares of capital stock of each Guarantor have been duly and
validly authorized and issued, are fully paid and non-assessable
and (except for directors’ qualifying shares) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(x) The execution, delivery and performance of the Indenture and
this Agreement and the issuance and sale of the Securities and the
compliance by the Company with all of the provisions thereof and
the consummation by the Company of the transactions contemplated
herein will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under,
any material indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such actions
result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or, to the best of its
knowledge, any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its properties; and no consent, approval,
authorization, order, decree, registration or qualification of or
with any such court or governmental agency or body is required for
the issuance and sale of the Securities or the consummation by the
Company of the transactions contemplated by this Agreement, except
such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign securities
or "blue sky" laws or as have been obtained under the Securities
Act or the Trust Indenture Act in connection with the issuance and
sale of the Securities by the Issuers; and each of the Issuers has
full power and authority to authorize, issue and sell the
Securities as contemplated by this Agreement.
(xi) The execution, delivery and performance of the Indenture
and this Agreement and the issuance and sale of the Securities and
the compliance by each of the Guarantors with all of the provisions
thereof and the consummation by each of the Guarantors of the
transactions contemplated herein will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any material indenture, mortgage, deed
of trust, loan agreement or other
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material agreement or instrument to which any of
the Guarantors are a party or by which any of the Guarantors are
bound or to which any of the property or assets of any of the
Guarantors are subject, except where such conflict, breach,
violation or default is not reasonably likely to have a material
adverse change in the condition (financial or otherwise), financial
position, stockholders’ equity or results of operations of
the Company and its subsidiaries, considered as one enterprise, nor
will such actions result in any violation of the provisions of the
Certificate of Incorporation or By-laws of any of the Guarantors
or, to the best of the Company’s knowledge, any statute or
any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Guarantors or any of their
respective properties; and no consent, approval, authorization,
order, decree, registration or qualification of or with any such
court or governmental agency or body is required for the issuance
of any of the Guarantees or the consummation by any of the
Guarantors of the transactions contemplated by this Agreement,
except such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign securities
or "blue sky" laws or as have been obtained under the Securities
Act or the Trust Indenture Act in connection with the issuance of
the Guarantees.
(xii) This Agreement has been duly authorized, executed and
delivered by each of the Issuers.
(xiii) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered
by each of the Issuers and is a valid and legally binding
obligation of the Issuers, enforceable 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.
(xiv) None of the Issuers is (A) in violation of its Certificate
of Incorporation or By-laws or (B) in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any material indenture, mortgage, deed of
trust, loan agreement, lease or other material agreement or
instrument to which it is a party or by which it or any of its
properties may be bound, where such default is reasonably likely to
have a material adverse change in the condition (financial or
otherwise), financial position, stockholders’ equity or
results of operations of the Company and its subsidiaries,
considered as one enterprise.
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(xv) Other than as set forth in the Registration
Statement, the Time of Sale Information and the Prospectus, there
are no legal or governmental proceedings pending 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
which is reasonably likely by the Company to have, individually or
in the aggregate, a material adverse change in the condition
(financial or otherwise), financial position, stockholders’
equity or results of operations of the Company and its
subsidiaries, considered as one enterprise; and, to the best of the
Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others.
(xvi) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company," as such term is defined in the Investment Company Act of
1940, as amended (the " Investment Company Act ").
(xvii) The financial statements included or incorporated by
reference in the Registration Statement, the Time of Sale
Information and Prospectus present fairly, in all material
respects, 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 Registration Statement, the Time of Sale
Information and the Prospectus, such financial statements have been
prepared in conformity with accounting principles generally
accepted in the United States; any schedules included in the
Registration Statement, the Time of Sale Information and the
Prospectus present fairly, in all material respects, the
information required to be stated therein.
(xviii) Except as disclosed in the Registration Statement, the
Time of Sale Information and the Prospectus, since the date of the
latest audited financial statements included in the Registration
Statement, the Time of Sale Information and the Prospectus, there
has been no material adverse change, nor any development reasonably
likely to have a material adverse change, in the condition
(financial or otherwise), financial position, stockholders’
equity or results of operations of the Company and its
subsidiaries, considered as one enterprise.
(xix) KPMG LLP, who has certified certain financial statements
of the Company and its subsidiaries, is, to the best of the
Company’s knowledge, an independent registered public
accounting firm with respect to the Company and its subsidiaries
within the applicable rules and regulations adopted by the
Commission and the Public Company Accounting Oversight Board
(United States) and as required by the Securities Act.
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(xx) The Company is not an "ineligible issuer"
and is a "well-known seasoned issuer", in each case as defined
under the Securities Act, in each case at the times specified in
the Securities Act in connection with the offering of the
Securities.
(xxi) The Company and its subsidiaries maintain an effective
system of "disclosure controls and procedures" (as defined in Rule
13a-15(e) of the Exchange Act) and have carried out evaluations of
the effectiveness of their disclosure controls and procedures as
required by Rule 13a-15 of the Exchange Act.
(xxii) The Company and its subsidiaries maintain systems of
"internal control over financial reporting" (as defined in Rule
13a-15(f) of the Exchange Act) that comply with the requirements of
the Exchange Act. Except as disclosed in the Registration
Statement, the Time of Sale Information and the Prospectus, there
are no material weaknesses in the Company’s internal
controls.
(b) Each Guarantor, severally, and not jointly, represents and
warrants to and agrees with the Underwriters that:
(i) The Registration Statement is an "automatic shelf
registration statement" as defined under Rule 405 of the Securities
Act that has been filed with the Commission not earlier than three
years prior to the date hereof; 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 Securities Act has been received by the Company. No order
suspending the effectiveness of the Registration Statement has been
issued by the Commission and no proceeding for that purpose or
pursuant to Section 8A of the Securities Act against the
Company or related to the offering has been initiated or threatened
by the Commission; as of the Effective Time, the Registration
Statement complied in all material respects with the Securities Act
and the Trust Indenture Act, and did not or will not contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto and as of the
Closing Date, the Prospectus did not and will not contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which
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they were made, not misleading; provided
that such Guarantor makes no representation and warranty with
respect to (i) that part of the Registration Statement that
constitutes the Statement of Eligibility and Qualification (Form
T-1) of the Trustee under the Trust Indenture Act or (ii) any
statements or omissions in the Registration Statement and the
Prospectus and any amendment or supplement thereto made in reliance
upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use therein.
(ii) The Time of Sale Information, at the Time of Sale and at
the Closing Date 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 the applicable Guarantor makes no representation and warranty
with respect to any statements or omissions made in reliance upon
and in conformity with information relating to any Underwriter
furnished to the applicable Guarantor in writing by such
Underwriter through the Representatives expressly for use in such
Time of Sale Information.
(iii) Each Guarantor (including its agents and representatives,
other than the Underwriters in their capacity as such) has not
prepared, made, used, 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 Securities Act)
that constitutes an offer to sell or solicitation of an offer to
buy the Securities other than (i) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of
the Securities Act or Rule 134 under the Securities Act,
(ii) the Preliminary Prospectus, (iii) the Prospectus,
(iv) the documents, other than the Preliminary Prospectus,
listed on Schedule III to the Underwriting Agreement as
constituting the Time of Sale Information and (v) any
electronic road show or other written communications, in each case
approved in writing in advance by the Representatives. Each Issuer
Free Writing Prospectus complied in all material respects with the
Securities Act, has been or will be (within the time period
specified in Rule 433) filed in accordance with the Securities Act
(to the extent required thereby) and, when taken together with the
Preliminary Prospectus accompanying, or delivered prior to delivery
of, or filed prior to the first use of such Issuer Free Writing
Prospectus, did not, and at the Closing 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 of
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the circumstances under which they were made, not
misleading; provided that such Guarantor makes no
representation and warranty with respect to any statements or
omissions made in each such Issuer Free Writing Prospectus in
reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Representatives expressly for use in any Issuer Free
Writing Prospectus.
(iv) The applicable Guarantee has been duly authorized by the
Guarantor; and when such Guarantee is delivered pursuant to this
Agreement on the Closing Date, such Guarantee will have been duly
executed, issued and delivered and will conform in all material
respects to the description thereof contained in the Registration
Statement, the Time of Sale Information and the Prospectus and the
provisions of the Indenture and will constitute a valid and legally
binding obligation of the Guarantor, enforceable 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.
(v) The Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as
described in the Registration Statement, the Time of Sale
Information and the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such
qualification, except where the failure to be so qualified is not
reasonably likely to have a material adverse change, in the
condition (financial or otherwise), financial position or results
of operations of the Guarantor and its subsidiaries, considered as
one enterprise.
(vi) The execution, delivery and performance of the Indenture
and this Agreement and the issuance of the applicable Guarantee and
the compliance by the Guarantor with all of the provisions thereof
and the consummation by the Guarantor of the transactions
contemplated herein will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any material indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which
the Guarantor is a party or by which the Guarantor is bound or to
which any of the property or assets of the Guarantor is
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subject, except where such conflict, breach,
violation or default is not reasonably likely to have a material
adverse change in the condition (financial or otherwise), financial
position, stockholders’ equity or results of operations of
the Company and its subsidiaries, considered as one enterprise, nor
will such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Guarantor or, to the
best of its knowledge, any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction
over the Guarantor or any of its properties; and no consent,
approval, authorization, order, decree, registration or
qualification of or with any such court or governmental agency or
body is required for the issuance of the applicable Guarantee or
the consummation by the Guarantor of the transactions contemplated
by this Agreement, except such consents, approvals, authorizations,
registrations or qualifications as may be required under state or
foreign securities or "blue sky" laws or as have been obtained
under the Securities Act or the Trust Indenture Act in connection
with the issuance and sale of the Securities by the Issuers; and
the Guarantor has full power and authority to authorize and issue
the Guarantee as contemplated by this Agreement.
(vii) This Agreement has been duly authorized, executed and
delivered by the Guarantor.
(viii) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered
by the Guarantor and is a valid and legally binding obligation of
the Guarantor, enforceable 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.
(ix) The Guarantor is not an "ineligible issuer" as defined
under the Securities Act at the times specified in the Securities
Act in connection with the offering of the Securities.
3. Purchase, Sale and Delivery of Initial Securities . On
the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to the several Underwriters, and
each Underwriter agrees to purchase, severally and not jointly,
from the Company, the respective principal amount of Securities set
forth opposite such Underwriter’s name on Schedule II hereto
at the purchase price set forth thereon, plus accrued interest, if
any, from the date specified in Schedule I hereto to the date of
payment and delivery, and the Guarantors agree to issue the
Guarantees with respect to the Securities.
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The Company understands that the several
Underwriters intend (i) to make a public offering of their
respective portions of the Securities and (ii) initially to
offer the Securities upon the terms set forth in the Registration
Statement, the Time of Sale Information and the
Prospectus.
The Issuers will deliver, against payment of the purchase price,
the Securities in the form of one or more permanent global
securities in definitive form (the " Global Securities ")
deposited with the Trustee as custodian for The Depository Trust
Company (" DTC ") and registered in the name of
Cede & Co. as nominee for DTC. Interests in any permanent
Global Securities will be held only in book-entry form through DTC,
except in the limited circumstances described in the Registration
Statement, the Time of Sale Information and the Prospectus. Payment
for the Securities shall be made by the Underwriters by wire
transfer in immediately available funds to an account specified by
the Company on the date and at the time set forth in Schedule I
hereto, or at such other time not later than five full business
days thereafter as the Underwriters and the Company may agree in
writing, such time being herein referred to as the " Closing
Date ," against delivery to the Trustee as custodian for DTC of
the Global Securities representing all of the Securities. The
Global Securities will be made available for checking by the
Representatives at such place as the Representatives and the
Company agree not later than 1:00 P.M. New York City Time, on the
Business Day prior to the Closing Date.
The Company acknowledges and agrees that the Underwriters are
acting solely in the capacity of an arm’s length contractual
counterparty to the Company and not as a financial advisor or a
fiduciary to, or an agent of, the Company or any other person, in
each case, with respect to the offering of Securities contemplated
hereby (including in connection with determining the terms of the
offering). Additionally, no such Underwriter is advising the
Company or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction with respect
to the offering of Securities contemplated hereby. The Company
shall consult with its own advisors concerning such matters and
shall be responsible for making its own independent investigation
and appraisal of the offering of Securities contemplated hereby,
and such Underwriters shall have no responsibility or liability to
the Company with respect to any information or advice received by
the Company from its own advisors concerning such matters or
arising out of its own independent investigation and appraisal of
the offering of Securities contemplated herby. Any review by such
Underwriters named in the Underwriting Agreement of the Company,
the transactions contemplated thereby or other matters relating to
such transactions will be performed solely for the benefit of the
Underwriters and shall not be on behalf of the Company.
4. Certain Agreements of the Issuers . The Issuers,
jointly and severally, agree with each of the several Underwriters
that:
(a) The Issuers will (i) pay the registration fees for this
offering within the time period required by Rule 456(b)(1)(i) under
the Securities
13
Act (without giving effect to the proviso
therein) and in any event prior to the Closing Date and (ii) file
the Prospectus in a form approved by the Representatives pursuant
to Rule 424 under the Securities Act not later than the
Commission’s close of business on the second Business Day
following the date of determination of the offering price of the
Securities or, if applicable, such earlier time as may be required
by Rule 424(b) and Rule 430A, 430B or 430C under the Securities
Act. The Company will file any Issuer Free Writing Prospectus
(including the Term Sheet in the form of Schedule VII to the
Underwriting Agreement) to the extent required by Rule 433 under
the Securities Act; and the Company will furnish copies of the
Prospectus and each Issuer Free Writing Prospectus (to the extent
not previously delivered) to the Underwriters in New York City
prior to 10:00 A.M., New York City time, on the
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