Exhibit 1.1
CENTURYTEL, INC.
$400,000,000 7.60% Senior Notes,
Series P, due 2039
$250,000,000 6.15% Senior Notes,
Series Q, due 2019
UNDERWRITING
AGREEMENT
September 14, 2009
Banc of America
Securities LLC
Barclays
Capital Inc.
J.P. Morgan
Securities Inc.
Wells Fargo
Securities, LLC
Mitsubishi UFJ
Securities (USA), Inc.
Morgan Stanley
& Co. Incorporated
SunTrust
Robinson Humphrey, Inc.
Deutsche Bank
Securities Inc.
Morgan Keegan
& Company, Inc.
U.S. Bancorp
Investments, Inc.
|
|
Banc of America
Securities LLC
|
|
|
J.P. Morgan
Securities Inc.
|
|
|
Wells Fargo
Securities, LLC
|
|
|
301 South
College Street, 6 th
Floor
|
|
|
Charlotte,
North Carolina 28288
|
Ladies and
Gentlemen:
CenturyTel, Inc., a Louisiana corporation (the
“ Company ”), proposes to issue and sell to you
(individually, an “ Underwriter ” and
collectively, the “ Underwriters ”) an aggregate
of $400,000,000 principal amount of the Company’s 7.60%
Senior Notes, Series P, due 2039 (the “ Series P Notes
”) and an aggregate of $250,000,000 principal amount of the
Company’s 6.15% Senior Notes, Series Q, due 2019 (the “
Series Q Notes ” and, together with the Series P
Notes, the “ Securities ”) to be issued pursuant
to an Indenture dated as of March 31, 1994, between the Company and
Regions Bank (successor-in-interest to First American Bank &
Trust of Louisiana and Regions Bank of Louisiana), as trustee (the
“ Trustee ”), as supplemented to the date
hereof, and as will be further supplemented by the Fifth
Supplemental Indenture (the “ Supplemental Indenture
”) dated as of September 21, 2009 relating to the Securities
(the “ Indenture ”).
The purchase price for the Securities to be paid
by the Underwriters shall be agreed upon by the Company and the
Underwriters and such agreement shall be set forth in a separate
written instrument substantially in the form of Exhibit A hereto
(the “ Price Determination Agreement
”). The Price Determination Agreement may take the
form of an exchange of any standard form of written communication
among the Company and the Underwriters and shall specify such
applicable information as is indicated in Exhibit A
hereto. The offering of the Securities will be governed
by this Agreement, as supplemented by the Price Determination
Agreement. From and after the date of the execution and
delivery of the Price Determination Agreement, this Agreement shall
be deemed to incorporate, and, unless the context otherwise
indicates, all references contained herein or in the exhibits
hereto to “this Agreement,” the “Underwriting
Agreement” and to the phrase “herein” shall be
deemed to include the Price Determination Agreement.
The Company confirms as follows its agreements
with the several Underwriters.
1.
Agreement to Sell and Purchase
. (a) On the basis of the representations,
warranties and agreements of the Company herein contained and
subject to all the terms and conditions of this Agreement, the
Company agrees to sell to each of the Underwriters, and the
Underwriters agree, severally and not jointly, to purchase from the
Company, the principal amount of the Securities set forth opposite
the name of such Underwriter in Schedule I hereto, plus such
additional principal amount of Securities which any Underwriter may
become obligated to purchase pursuant to Section 8 hereof, all at
the purchase price, to be agreed upon by the Underwriters and the
Company in accordance with Section 1(b) and as set forth in the
Price Determination Agreement.
(b) The
purchase price for the Securities to be paid by the several
Underwriters shall be agreed upon and set forth in the Price
Determination Agreement, which shall be dated the Execution Date
(as hereinafter defined).
2.
Delivery and Payment . Delivery of the Securities
shall be made to the Underwriters for the account of each
Underwriter in book-entry form through the facilities of The
Depository Trust Company (“DTC”) against payment of the
purchase price therefor by such Underwriter or on its behalf
therefor by wire transfer in same day funds to the Company or its
order at the office of Pillsbury Winthrop Shaw Pittman LLP, New
York, New York or at such other location as the parties may
agree. Such payment shall be made at 10:00 a.m., New
York City time, on the fifth business day following the date of
this Agreement or at such time on such other date, as may be agreed
upon by the Company and the Underwriters (such date is hereinafter
referred to as the “ Closing Date ”).
The Securities of each series to be purchased by
each Underwriter hereunder will be represented by one or more
registered global Securities in book-entry form, which will be
deposited by or on behalf of the Company with DTC or its designated
custodian. The certificates for the Securities will be
made available for examination and packaging by Banc of America
Securities LLC, Barclays Capital Inc., J.P. Morgan Securities Inc.
and Wells Fargo Securities, LLC, as representatives of the several
Underwriters (the “ Representatives ”), in New
York City not later than 10:00 a.m. (New York City time) on the
business day prior to the Closing Date.
The cost of original issue tax stamps, if any,
in connection with the issuance and sale of the Securities by the
Company to the respective Underwriters shall be borne by the
Company. The Company will pay and save each Underwriter
and any subsequent holder of the Securities harmless from any and
all liabilities with respect to or resulting from any failure or
delay in paying federal and state stamp and other issuance taxes,
if any, which may be payable or determined to be payable in
connection with the original issuance or sale to such Underwriter
of the Securities.
3.
Representations and Warranties of the Company
. The Company represents and warrants to the several
Underwriters as of the date hereof and as of the Closing Date, and
covenants with the several Underwriters, that:
(a) The
Company meets the requirements for the use of an “automatic
shelf registration statement,” as defined in Rule 405 under
the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the “
Securities Act ”), and such registration statement on
Form S-3 (File No. 333-157188), including a prospectus (the “
Basic Prospectus ”), relating to, among other
securities, the debt securities to be issued from time to time by
the Company has been prepared and filed by the Company with the
Securities and Exchange Commission (the “ Commission
”) not earlier than three years prior to the date
hereof. The Company has also filed, or proposes to file,
with the Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement dated the date hereof specifically relating
to the Securities (the “ Prospectus Supplement
”).
The registration statement, at the Effective
Date (as defined herein), 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 such
effectiveness (“ Rule 430 Information ”), is
referred to herein as the “ Registration Statement
”; and as used herein, the term “ Prospectus
” means the Basic Prospectus as supplemented by the
Prospectus Supplement 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 and the term “ Preliminary Prospectus
” means the preliminary prospectus supplement dated September
14, 2009 specifically relating to the Securities together with the
Basic Prospectus. References herein to the Registration Statement,
the Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated or deemed to be
incorporated by reference therein as of the Effective Date with
respect to the Registration Statement or the date of the
Preliminary Prospectus or the date of the Prospectus, as the case
may be. The terms “supplement,”
“amendment” and “amend” as used herein with
respect to the Registration Statement, the Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any
documents filed by the Company under the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “ Exchange Act ”),
subsequent to the date of this Agreement which are deemed to be
incorporated by reference therein. For purposes of this
Agreement, the term “ Effective Date ” means the
effective date of the Registration Statement with respect to the
offering of Securities as determined for the Company pursuant to
Rule 430B(f)(2) under the Securities Act. The term “
Execution Date ” means the date that this Agreement is
executed and delivered by the parties hereto, as reflected on the
first page hereof.
At or prior to the Time of Sale (as defined in
the Price Determination Agreement), the Company had prepared the
following information (collectively, the “ Time of Sale
Information ”): the Preliminary Prospectus and each
Issuer Free Writing Prospectus (as defined herein) listed on
Schedule III hereto.
(b) The
Registration Statement became effective upon filing with the
Commission under the Securities Act. 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, to the best knowledge of the
Company, threatened by the Commission; as of the Effective Date,
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 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 the Trust Indenture 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
furnished to the Company in writing by any Underwriter through the
Representatives expressly for use therein.
(c) The
Time of Sale Information, at the Time of Sale 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 the Time of Sale Information in reliance upon
and in conformity with information furnished to the Company in
writing by any Underwriter through the Representatives expressly
for use in such Time of Sale Information. No statement
of material fact included in the Prospectus has been omitted from
the Time of Sale Information and no statement of material fact
included in the Time of Sale Information that is required to be
included in the Prospectus has been omitted therefrom.
(d) The
Company (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 (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
listed on Schedule III to this Agreement as constituting part of
the Time of Sale Information and (v) any electronic road show or
other written communications, in the case of clause (v) approved in
writing in advance by the Representatives. Each such
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 each such other Issuer Free Writing Prospectus and
the Preliminary 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 furnished to the
Company in writing by any Underwriter through the Representatives
expressly for use in any such Issuer Free Writing
Prospectus.
(e) The
documents which are incorporated by reference in the Registration
Statement, the Prospectus and the Time of Sale Information, when
filed with the Commission, as the case may be, complied in all
material respects with the requirements of the Securities Act or
the Exchange Act and did not and will not contain an untrue
statement of 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.
(f)
(A) (i) At the time of initial filing of 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 Section 13 or
15(d) of the Exchange Act or form of prospectus), and (iii) at the
time the Company or any person acting on its behalf (within the
meaning, for this clause only, of Rule 163(c) under the Securities
Act) made any offer relating to the Securities in reliance on the
exemption of Rule 163 under the Securities Act, the Company was a
“well-known seasoned issuer” as defined in Rule 405
under the Securities Act; and (B) at the earliest time after the
filing of the Registration Statement that the Company or another
offering participant made a bona fide offer (within the meaning of
Rule 164(h)(2) under the Securities Act) of the Securities, the
Company was not, and currently is not, an “ineligible
issuer” as defined in Rule 405 under the Securities
Act.
(g)
Each of
the Company and each of its subsidiaries listed on Schedule II
hereto (the “ Subsidiaries ”) is, and at the
Closing Date will be, a corporation, limited liability company or
partnership duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization. The
Subsidiaries are the Company’s only “significant
subsidiaries” (as such term is defined in Regulation S-X
under the Exchange Act but assuming that the merger with Embarq (as
defined herein) occurred as of December 31, 2008). Each of the
Company and each of the Subsidiaries has, and at the Closing Date
will have, full power and authority to conduct all the activities
conducted by it, to own or lease all the assets owned or leased by
it and to conduct its business as described in the Registration
Statement, the Time of Sale Information and the
Prospectus. Each of the Company and each of the
Subsidiaries is, and at the Closing Date will be, duly licensed or
qualified to do business and in good standing as a foreign
corporation or limited liability company in all jurisdictions in
which the nature of the activities conducted by it or the character
of the assets owned or leased by it makes such licensing or
qualification necessary except where the failure to be so qualified
or licensed would not have a material adverse affect on the
business, properties, business prospects, condition (financial or
otherwise) or results of operations of the Company and its
subsidiaries, taken as a whole (a “ Material Adverse
Affect ”). For purposes of this Agreement,
“subsidiaries” shall mean (a) the Company’s
direct and indirect majority-owned corporate subsidiaries (b) the
Company’s direct and indirect majority owned limited
liability companies and (c) the partnerships, joint ventures and
other entities of which the Company or any subsidiary is the
majority owner or managing general partner. Complete and
correct copies of the certificate of incorporation and of the
by-laws or other organizational documents of the Company and each
of the Subsidiaries and all amendments thereto have been made
available to the Underwriters, and no changes therein will be made
subsequent to the Time of Sale and prior to the Closing
Date.
(h) The
Securities have been duly and validly authorized and, when
authenticated by the Trustee and issued, delivered and sold in
accordance with this Agreement and the Indenture, will have been
duly and validly executed, authenticated, issued and delivered and
will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms and entitled to the benefits provided by the Indenture except
(i) that such enforcement may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar
laws, now or hereafter in effect, relating to creditors’
rights generally and (ii) that the remedy of specific performance
and injunctive and other forms of equitable relief may be subject
to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(i) The
description of the Securities in each of the Registration
Statement, the Time of Sale Information and the Prospectus is, and
at the Closing Date will be, complete and accurate in all material
respects and, insofar as such description contains statements
constituting a summary of the legal matters or documents referred
to therein, such description fairly summarizes the information
referred to therein.
(j) The
historical financial statements and schedules included or
incorporated by reference in the Registration Statement, the Time
of Sale Information and the Prospectus, including the financial
statements and schedules of Embarq Corporation, a Delaware
corporation (“ Embarq ”), contained in
Embarq’s Annual Report on Form 10-K, as amended, for the year
ended December 31, 2008, Embarq’s Quarterly Report on Form
10-Q for the quarter ended March 31, 2009 and the Company’s
Current Report on Form 8-K dated September 14, 2009, in each case
filed by the Company or Embarq with the Commission, present fairly
the consolidated financial condition of the Company and Embarq as
of the respective dates thereof and the consolidated results of
operations and cash flows of the Company and Embarq for the
respective periods covered thereby, all in conformity with United
States generally accepted accounting principles applied on a
consistent basis throughout the entire period involved, except as
otherwise disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus. The selected consolidated financial
data included in the Registration Statement, the Time of Sale
Information and the Prospectus present fairly as of the dates
thereof the information shown therein and have been compiled on a
basis consistent with that of the audited consolidated financial
statements of the Company and Embarq included or incorporated by
reference in the Registration Statement, the Time of Sale
Information and the Prospectus. No other financial
statements or schedules of the Company or Embarq are required by
the Securities Act or the Exchange Act to be included in or
incorporated by reference in the Registration Statement, the Time
of Sale Information or the Prospectus.
(k) The
pro forma financial information included or incorporated by
reference in the Registration Statement, the Time of Sale
Information and the Prospectus has been prepared on a basis
consistent with the Company’s historical financial statements
incorporated by reference in the Registration Statement, the Time
of Sale Information and the Prospectus (except for the pro
forma adjustments specified therein), includes all material
adjustments to the Company’s historical financial information
required by Rule 11-02 of Regulation S-X under the Securities Act
and the Exchange Act to reflect the transactions described in the
notes to such financial information as of the respective dates of
such pro forma information and gives effect to assumptions
made on a reasonable basis. No other pro forma financial
statements or information are required by the Securities Act or the
Exchange Act to be included or incorporated by reference in the
Registration Statement, the Time of Sale Information or the
Prospectus.
(l) KPMG
LLP (“ KPMG ”), who has audited certain
financial statements and schedules of the Company and Embarq
incorporated by reference in the Registration Statement, the Time
of Sale Information and the Prospectus, and audited the
Company’s and Embarq’s internal control over financial
reporting as of December 31, 2008, is an independent registered
public accounting firm with respect to the Company, and was an
independent registered public accounting firm with respect to
Embarq, in each case, as required by the Securities Act.
(m) Neither
the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included
or incorporated by reference in the Time of Sale Information and
the Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Time of Sale Information and the Prospectus;
and, since the respective dates as of which information is given in
the Registration Statement, the Time of Sale Information and the
Prospectus, there has not been any change in the capital stock or
long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting
the general affairs, management, financial position,
stockholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole, otherwise than as set forth
or contemplated in the Time of Sale Information and the
Prospectus.
(n) The
Company is not, and after giving effect to the issuance and sale of
the Securities and the application of the proceeds thereof as
described in the Time of Sale Information, will not be, an
“investment company” or an “affiliated
person” of, or “promoter” or “principal
underwriter” for, an “investment company,” as
such terms are defined in the Investment Company Act of 1940, as
amended.
(o) Except
as set forth in the Registration Statement, the Time of Sale
Information and the Prospectus, there are no actions, suits or
proceedings pending or, to the best of the Company’s
knowledge, threatened against or affecting the Company or any of
its subsidiaries or any of their respective officers in their
capacity as such, before or by any federal or state court,
commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, that is likely to have a
Material Adverse Affect. Except as set forth in the
Registration Statement, the Time of Sale Information and the
Prospectus, all actions, suits or proceedings now pending against
the Company or any of its subsidiaries, or any of their respective
officers in their capacities as such, before any Federal or state
court, commission, regulatory body, administrative agency or other
governmental body, domestic or foreign, if decided or resolved in a
manner unfavorable to the Company or any of its subsidiaries, would
not be likely to, individually or in the aggregate, have a Material
Adverse Affect.
(p) The
Company and each of the Subsidiaries has and, at the Closing Date,
will have (i) such franchises, certificates, authorities or permits
issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated
by them, other than those the absence of which would not be likely
to have a Material Adverse Affect, and neither the Company nor any
of the Subsidiaries has received any written notice of proceedings
relating to the revocation or modification of any such franchise,
certificate, authority or permit which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would be likely to have a Material Adverse Affect, (ii)
complied in all material respects with all laws, statutes,
ordinances, rules, regulations, orders or decrees of any court,
governmental body or regulatory authority or administrative agency
having jurisdiction over the Company or any Subsidiary or any of
the property or assets of the Company or any Subsidiary (including,
without limitation, any such laws, statutes, ordinances, rules,
regulations, orders or decrees with respect to environmental
protection or the release, handling, treatment, storage or disposal
of hazardous substances or toxic wastes), the failure to comply
with which would be likely to have a Material Adverse Affect, and
(iii) performed in all material respects all of its obligations
required to be performed by it under any material contract or other
instrument to which it is a party or by which its property is bound
or affected, and is not, and at the Closing Date, will not be, in
default under any such contract or instrument the effect of which
would be likely to have a Material Adverse Affect. To
the best knowledge of the Company, no other party under any
material contract or other instrument to which it or any Subsidiary
is a party is in default in any respect thereunder, except for any
such defaults (alone or collectively) that would not be likely to
have a Material Adverse Affect; provided that it is understood and
agreed that neither the Company nor any Subsidiary has undertaken
any special investigation to determine compliance by such other
parties under any such contract or other instrument. The
Company is not, and at the Closing Date will not be, in violation
of any provision of its articles of incorporation or by-laws or in
default in any material respect under any agreement or instrument
evidencing indebtedness for borrowed money. The
Subsidiaries are not, and at the Closing Date, will not be, in
violation of any material provision of their respective articles of
incorporation or by-laws (or comparable organizational documents)
or in default under any agreement or instrument evidencing
indebtedness for borrowed money (A) as a result of the failure to
make one or more payments in excess of $5 million in the aggregate
that are due and owed thereunder, or (B) otherwise in any respect
which is likely to have a Material Adverse Affect.
(q) No
consent, approval, authorization or order of, or any filing,
registration, qualification or declaration with, any court or
governmental agency or body is required for (i) the execution,
delivery or performance of this Agreement, the Securities or the
Supplemental Indenture by the Company, (ii) the authorization,
offer, issuance, transfer, sale or delivery of the Securities by
the Company in accordance with this Agreement or (iii) the
consummation by the Company of the transactions on its part
contemplated herein and by the Indenture, except such as may have
been obtained, or on or prior to the Closing Date will be obtained,
under the Securities Act, the Exchange Act or the Trust Indenture
Act and such as may be required under foreign or state securities
or blue sky laws or the by-laws and rules of the Financial Industry
Regulatory Authority (“ FINRA ”) in connection
with the purchase and distribution of the Securities by the
Underwriters.
(r) The
Company has full corporate power and authority to enter into this
Agreement. This Agreement has been duly authorized,
executed and delivered by the Company and, when duly executed and
delivered by the Underwriters, will constitute a valid and binding
agreement of the Company and will be enforceable against the
Company in accordance with the terms hereof, except (i) that such
enforcement may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar
laws, now or hereafter in effect, relating to creditors’
rights generally, (ii) that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought and (iii) rights to
indemnity and contribution hereunder may be limited by federal or
state laws relating to securities or the policies underlying such
laws. The Indenture has been duly authorized, executed
and delivered by the Company and the Trustee and has been qualified
under the Trust Indenture Act and constitutes a valid and binding
agreement of the Company enforceable against the Company in
accordance with its terms, except (i) that such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws, now or hereafter in effect, relating to
creditors’ rights generally and (ii) that the remedy of
specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion
of the court before which any proceeding therefor may be
brought.
(s) The
issue and sale of the Securities, the execution, delivery and
performance by the Company of this Agreement and the Indenture and
the consummation of the transactions contemplated hereby and
thereby will not (i) result in a violation of any of the terms or
provisions of the articles of incorporation or by-laws (or
comparable instruments) of the Company or any of the Subsidiaries,
or (ii) violate or conflict with any franchise or any judgment,
ruling, decree, order, statute, rule or regulation of any court or
other governmental agency or body applicable to the business or
properties of the Company or any of the Subsidiaries or (iii)
result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or any of the
Subsidiaries pursuant to the terms or provisions of, or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, or give any other party a right to
terminate any of its obligations under, or result in the
acceleration of any obligation under, any indenture, mortgage, deed
of trust, voting trust agreement, loan agreement, bond, debenture,
note agreement or other evidence of indebtedness, lease, contract
or other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which the Company or any of the
Subsidiaries or any of their respective properties is or are bound
or affected (the “applicable agreements”), other than
with respect to this clause (iii) any breaches, violations,
defaults, terminations or accelerations with respect to any
applicable agreement that will not, or are not likely to, have a
Material Adverse Affect.
(t) The
Company and each of the Subsidiaries has good and marketable title
to all franchises, properties and assets owned by it, which are
material to the business or operations of the Company and its
subsidiaries, taken as a whole (including without limitation the
stock or other equity interests of all subsidiaries), free and
clear of all liens, charges, encumbrances or restrictions, except
such as are described in the Time of Sale Information and the
Prospectus and except immaterial liens which do not affect the
operations or financial condition of the Company. The
Company and each of the Subsidiaries has valid, subsisting and
enforceable leases for the properties leased by it, with such
exceptions as would not materially interfere with the business or
operations of the Company and it subsidiaries, taken as a
whole.
(u) All
existing material contracts described in the Time of Sale
Information and the Prospectus to which the Company or any of the
Subsidiaries is a party have been duly authorized, executed and
delivered by the Company or such Subsidiary, constitute valid and
binding agreements of the Company or such Subsidiary and are
enforceable against the Company or such Subsidiary in accordance
with the terms thereof, except (i) that such enforcement may be
subject to bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws, now or hereafter in
effect, relating to creditors’ rights generally and (ii) that
the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought. Such described contracts are the only
contracts required to be described in the Time of Sale Information
and the Prospectus by the Securities Act.
(v) No
statement, representation, warranty or covenant made by the Company
in this Agreement or the Indenture or made in any certificate or
document required by this Agreement to be delivered to the
Underwriters was or will be, when made, inaccurate, untrue or
incorrect in any material respect.
(w) No
holder of securities of the Company has rights to the registration
of any securities of the Company because of the filing of the
Registration Statement or the offering and sale of the
Securities.
(x) No
action has been taken and no statute, rule, regulation or order has
been enacted, adopted or issued by any governmental agency or body
that prevents the issuance of the Securities, suspends the
effectiveness of the Registration Statement, prevents or suspends
the use of the Time of Sale Information or the Prospectus, or
suspends the sale of the Securities in any jurisdiction referred to
in Section 4(i) below, provided, however, that to the extent this
representation relates to state securities or blue sky laws and
laws of jurisdictions other than the United States and its
political subdivisions, it shall be limited to the knowledge of the
Company. No injunction, restraining order or order of
any nature by a federal or state court of competent jurisdiction
has been issued and served on the Company or any of its
Subsidiaries with respect to the Company or any of its Subsidiaries
that would prevent or suspend the issuance or sale of the
Securities, the effectiveness of the Registration Statement, or the
use of the Time of Sale Information or the Prospectus in any
jurisdiction referred to in Section 4(i) below.
(y) The
Company has not taken, directly or indirectly, any action designed
to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities in any jurisdiction
referred to in Section 4(i) below in contravention of applicable
law, provided that no representation is made herein as to the
activities of any Underwriter.
(z) The
Company and its Subsidiaries maintain (x) systems of internal
controls over financial reporting (as defined in Rule 15d-15 under
the Exchange Act) sufficient to provide reasonable assurance 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 generally accepted accounting principles and to
maintain asset accountability; and (iii) 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 (y) disclosure controls and procedures as
defined in, and that comply with the requirements of, Rule 15d-15
under the Exchange Act.
(aa) The
Company is, to its knowledge, in compliance in all material
respects with the applicable provisions of the
Sarbanes-Oxl
|
