Exhibit 1
NELNET, INC.
$200,000,000 7.400% Capital Efficient
Notes due 2061
Underwriting
Agreement
September 22, 2006
J.P. Morgan
Securities Inc.
As
Representative of the
several
Underwriters listed
in Schedule 1
hereto
c/o
J.P. Morgan Securities
Inc.
270 Park
Avenue
New York, New
York 10017
Ladies and
Gentlemen:
Nelnet, Inc., a
Nebraska corporation (the “Company”), proposes to issue
and sell to the several Underwriters listed in Schedule 1 hereto
(the “Underwriters”), for whom you are acting as
representative (the “Representative”), $200,000,000
principal amount of its 7.400% Capital Efficient Notes due 2061
having the terms set forth in Annex D hereto (the
“Securities”). The Securities will be issued pursuant
to an Indenture dated as September 27, 2006 (the
“Indenture”) between the Company and Deutsche Bank
Trust Company Americas, as trustee (the “Trustee”), as
supplemented by the supplemental indenture dated as of September
27, 2006 between the Company and the Trustee (the
“Supplemental Indenture”).
1.
Registration Statement
. The Company has 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. 333-124043), including a prospectus
(the “Basic Prospectus”), relating to the debt
securities to be issued from time to time by the Company. The
Company has also filed, or proposes to file, with the Commission
pursuant to Rule 424 under the Securities Act a prospectus
supplement specifically relating to the Securities (the
“Prospectus Supplement”). 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”), 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 in connection
with confirmation of sales of the Securities and the term
“Preliminary Prospectus” means the
preliminary
prospectus
supplement specifically relating to the Securities together with
the Basic Prospectus. If the Company has filed an abbreviated
registration statement pursuant to Rule 462(b) under the Securities
Act (the “Rule 462 Registration Statement”), then any
reference herein to the term “Registration Statement”
shall be deemed to include such Rule 462 Registration Statement.
References herein to the Registration Statement, the Basic
Prospectus, any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Securities Act, as of the effective date of the Registration
Statement or the date of such Preliminary Prospectus or the
Prospectus, as the case may be. 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 after such date under the Securities
Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (the “Exchange Act”). For
purposes of this Agreement, the term “Effective Time”
means the date and time the Registration Statement became
effective.
At or prior to the time when sales of the
Securities were first made (the “Time of Sale”), the
Company had prepared the following information (collectively, the
“Time of Sale Information”): a Preliminary Prospectus
dated September 19, 2006, and each “free-writing
prospectus” (as defined pursuant to Rule 405 under the
Securities Act) listed on Annex C hereto as constituting part of
the Time of Sale Information.
2.
Purchase of the Securities by the
Underwriters . (a) The
Company agrees to issue and sell the Securities to the several
Underwriters named in this Agreement, and each Underwriter, on the
basis of the representations, warranties and agreements set forth
herein and subject to the conditions set forth herein, agrees,
severally and not jointly, to purchase from the Company the
respective principal amount of Securities set forth opposite such
Underwriter’s name in Schedule 1 hereto at a price equal to
98.634% of the principal amount thereof, plus accrued interest, if
any, from September 27, 2006. The Company will not be obligated to
deliver any of the Securities except upon payment for all the
Securities to be purchased as provided herein.
(b) The Company
understands that the Underwriters intend to make a public offering
of the Securities on the terms set forth in the Prospectus. The
Company acknowledges and agrees that the Underwriters may offer and
sell Securities to or through any affiliate of an Underwriter and
that any such affiliate may offer and sell Securities purchased by
it to or through any Underwriter.
(c) Payment for
and delivery of the Securities shall be made at the offices of
Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York
10017 at 10:00 A.M., New York City time, on September 27, 2006 (the
“Closing Date”), or at such other time or place on the
same or such other date, not later than the fifth business day
thereafter, as the Representative and the Company may agree upon in
writing.
(d) Payment for
the Securities shall be made by wire transfer in immediately
available funds to the account(s) specified by the Company to the
Representative against delivery to the nominee of The Depository
Trust Company, for the account of the Underwriters, of one or more
global notes representing the Securities (collectively, the
“Global Note”), with any transfer taxes payable in
connection with the sale of the Securities duly paid by the
Company. The Global
Note will be
made available for inspection by the Representative not later than
1:00 P.M., New York City time, on the business day prior to the
Closing Date.
(e) The Company
acknowledges and agrees that the Underwriters are acting solely in
the capacity of an arm’s length contractual counterparty to
the Company with respect to the offering of Securities contemplated
hereby (including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person. Additionally, neither
the Representative nor any other Underwriter is advising the
Company or any other person as to any legal, tax, investment,
accounting or regulatory matters in any jurisdiction. 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 transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the
Company with respect thereto. Any review by the Underwriters of the
Company, the transactions contemplated hereby 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.
3.
Representations and Warranties of
the Company . The Company
represents and warrants to each Underwriter that:
(a)
Preliminary
Prospectus . No order
preventing or suspending the use of any Preliminary Prospectus has
been issued by the Commission, and each Preliminary Prospectus, at
the time of filing thereof, complied in all material respects with
the Securities 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, 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 Representative expressly for use in
any Preliminary Prospectus.
(b)
Time of Sale
Information . 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 reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Representative 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.
(c)
Issuer Free Writing
Prospectus . 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 Annex C hereto 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 Representative. 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 the
Preliminary Prospectus 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
Representative expressly for use in any Issuer Free Writing
Prospectus.
(d)
Registration Statement and
Prospectus . The
Registration Statement and any Rule 462(b) Registration Statement
have been declared effective by the Commission under the Securities
Act. The Company has complied to the Commission’s
satisfaction with all requests, if any, of the Commission for
additional or supplemental information. No stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement is in effect and no proceedings for such
purpose or pursuant to Section 8A of the Securities Act against the
Company or relating to the offering have been instituted or are
pending or, to the knowledge of the Company, are contemplated or
threatened by the Commission. Each Preliminary Prospectus and the
Prospectus when filed complied in all material respects with the
Securities Act and, if filed by electronic transmission pursuant to
EDGAR (except as may be permitted by Regulation S-T under the
Securities Act), was identical to the copy thereof delivered to the
Underwriters for use in connection with the offer and sale of the
Securities. The Registration Statement and any post-effective
amendment thereto, at the time it became effective and at all
subsequent times, complied and will comply 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
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 to make the statements therein not misleading. The
Prospectus, as amended or supplemented, as of its date and at all
subsequent times, 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. The
representations and warranties set forth in the two immediately
preceding sentences do not apply 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 (whether filed as an exhibit to the
Registration Statement or as a Form 305B2) or (ii) statements in
or
omissions from
the Registration Statement, any Rule 462(b) Registration Statement,
or any post-effective amendment thereto, or the Prospectus, or any
amendments or supplements thereto, made in reliance upon and in
conformity with information relating to any Underwriter furnished
to the Company in writing by the Representative expressly for use
therein. There are no contracts or other documents required to be
described in the Prospectus or to be filed as exhibits to the
Registration Statement which have not been described or filed as
required.
(e)
Incorporated
Documents . 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; and any
further documents so filed during the Prospectus Delivery Period
and incorporated by reference in the Registration Statement, the
Prospectus or the Time of Sale Information, when such documents
become effective or are filed with the Commission during the
Prospectus Delivery Period, as the case may be, will conform in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, 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 to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(f)
Offering Materials Furnished to
Underwriters . The
Company has delivered to the Representative conformed copies of the
Registration Statement (without exhibits), any Preliminary
Prospectus and the Prospectus, as amended or supplemented, and each
Issuer Free Writing Prospectus in such quantities and at such
places as the Representative has reasonably requested for each of
the Underwriters.
(g)
Distribution of Offering Material
By the Company . The
Company has not distributed and will not distribute, prior to the
completion of the Underwriters’ distribution of the
Securities, any offering material in connection with the offering
and sale of the Securities other than a Preliminary Prospectus, the
Prospectus, the Time of Sale Information or the Registration
Statement.
(h)
The Indenture
. Each of the Indenture and the
Supplemental Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the
Trust Indenture Act and constitutes a valid and legally binding
agreement of the Company enforceable against the Company in
accordance with its terms, except as the enforcement hereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the rights and remedies
of creditors or by general equitable principles (collectively, the
“Enforceability Exceptions”).
(i)
The Securities
. The Securities have been duly
authorized by the Company and, when duly executed, authenticated,
issued and delivered as provided in the Indenture
and paid for as
provided herein, will be duly and validly issued and outstanding
and will constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with their
terms, subject to the Enforceability Exceptions, and will be
entitled to the benefits of the Indenture.
(j)
Underwriting
Agreement . This
Agreement has been duly authorized, executed and delivered by the
Company.
(k)
Descriptions of the Transaction
Documents . Each of this
Agreement, the Securities and the Indenture (collectively, the
“Transaction Documents”) conforms in all material
respects to the description thereof contained in the Registration
Statement, the Time of Sale Information and the
Prospectus.
(l)
No Applicable Registration or
Other Similar Rights .
There are no persons with registration or other similar rights to
have any equity or debt securities registered for sale under the
Registration Statement or included in the offering contemplated by
this Agreement except for such rights as have been duly
waived.
(m)
No Material Adverse
Change . Except as
otherwise disclosed in the Prospectus or the Time of Sale
Information, subsequent to the respective dates as of which
information is given or incorporated by reference in the
Registration Statement, the Time of Sale Information and the
Prospectus: (i) there has been no material adverse change, or any
development that could reasonably be expected to result in a
material adverse change, in the condition, financial or otherwise,
or in the earnings, business, operations or prospects, whether or
not arising from transactions in the ordinary course of business,
of the Company and its subsidiaries, considered as one entity (any
such change is called a “Material Adverse Change”);
(ii) the Company and its subsidiaries, considered as one entity,
have not incurred any material liability or obligation, indirect,
direct or contingent, not in the ordinary course of business or
entered into any material transaction or agreement not in the
ordinary course of business; (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Company on
any class of its capital stock or repurchase or redemption by the
Company of any class of its capital stock; and (iv) the Company and
its subsidiaries have not sustained any material loss or
interference with their respective businesses from fire, explosion,
flood, earthquake, accident or other calamity, whether or not
covered by insurance.
(n)
Independent
Accountants . KPMG LLP,
who have expressed their opinion with respect to the financial
statements (which term as used in this Agreement includes the
related notes thereto) filed with the Commission and incorporated
by reference in the Registration Statement, the Time of Sale
Information and the Prospectus, are, to the knowledge of the
Company after due inquiry, independent public accountants as
required by the Securities Act.
(o)
Preparation of the Financial
Statements . The
financial statements and the related notes thereto filed with the
Commission and incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus conform
in all material respects to the requirements of the Securities Act
and present fairly in all
material
respects the consolidated financial position of the Company and its
subsidiaries as of and at the dates indicated and the results of
their operations and cash flows for the periods specified. Such
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent
basis throughout the periods involved, except as may be expressly
stated therein. No other financial statements or supporting
schedules are required to be included or incorporated in the
Registration Statement, the Time of Sale Information and the
Prospectus. The financial data set forth in the Prospectus under
the caption “Capitalization” fairly present the
information set forth therein on a basis consistent with that of
the audited financial statements incorporated by reference in the
Registration Statement, the Time of Sale Information and the
Prospectus.
(p)
Incorporation and Good Standing
of the Company and its Subsidiaries . Each of the Company and its subsidiaries has
been duly incorporated and, to the extent a subsidiary is a
corporation, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation and has
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement, the Time of Sale Information and the
Prospectus and, in the case of the Company, to enter into and
perform its obligations under the Transaction Documents. Each of
the Company and each subsidiary is duly qualified as a foreign
corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except for such jurisdictions where the failure to so
qualify or to be in good standing would not, individually or in the
aggregate, result in a Material Adverse Change. All of the issued
and outstanding capital stock of each subsidiary has been duly
authorized and validly issued, is fully paid and nonassessable and,
except for minority interests in certain subsidiaries, is owned by
the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance or
claim. As of December 31, 2005, the Company did not own or control,
directly or indirectly, any corporation, association or other
entity other than the subsidiaries listed in Exhibit 21.1 to the
Company’s Annual Report on Form 10-K for the year ended
December 31, 2005.
(q)
No Prior Sales of
Securities . The Company
has not sold, issued or distributed any securities of the same or a
similar class as the Securities during the six-month period
preceding the date hereof, including any sales pursuant to Rule
144A under, or Regulations D or S of, the Securities
Act.
(r)
Non-Contravention of Existing
Instruments; No Further Authorizations or Approvals
Required . Neither the
Company nor any of its subsidiaries is in violation of its charter
or by-laws or is in default (or, with the giving of notice or lapse
of time, would be in default) (“Default”) under any
indenture, mortgage, deed of trust, loan or credit agreement, note,
contract, franchise, lease or other instrument to which the Company
or any of its subsidiaries is a party or by which it or any of them
may be bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject (each, an
“Existing Instrument”), except for such Defaults as
would not, individually or in the aggregate, result in a Material
Adverse Change. The Company’s execution, delivery
and
performance of
the Transactions Documents (i) have been duly authorized by all
necessary corporate action on the part of the Company and will not
result in any violation of the provisions of the charter or by laws
of the Company or any of its subsidiaries, (ii) will not conflict
with or constitute a breach of, or Default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries
pursuant to, or require the consent of any other party to, any
Existing Instrument, except for such conflicts, breaches, Defaults,
liens, charges or encumbrances as would not, individually or in the
aggregate, result in a Material Adverse Change and (iii) will not
result in any violation of any law, administrative regulation or
administrative or court decree applicable to the Company or any of
its subsidiaries, except for such violations as would not,
individually or in the aggregate, result in a Material Adverse
Change. No consent, approval, authorization or other order of, or
registration, qualification or filing with, any court or other
governmental or regulatory authority or agency is required for the
Company’s execution, delivery and performance of the
Transaction Documents, the issuance and sale of the Securities and
compliance by the Company with the terms thereof and the
consummation of the transactions contemplated by the Transaction
Documents, except such as have been obtained or made by the Company
and are in full force and effect under the Securities Act, the
Trust Indenture Act and applicable state securities or blue sky
laws.
(s)
No Material Actions or
Proceedings . Except as
disclosed in the Registration Statement, the Time of Sale
Information and the Prospectus, there are no legal or governmental
actions, investigations, suits or proceedings pending or threatened
or, to the Company’s knowledge, contemplated (i) against or
affecting the Company or any of its subsidiaries, (ii) which has as
the subject thereof any executive officer or director of, or
property owned or leased by, the Company or any of its subsidiaries
or (iii) relating to environmental or discrimination matters, where
in any such case (A) there is a reasonable possibility that such
action, suit or proceeding might be determined adversely to the
Company or such subsidiary and (B) any such action, suit or
proceeding, if so determined adversely, would reasonably be
expected to result in a Material Adverse Change or adversely affect
the consummation of the transactions contemplated by this
Agreement. No material labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the
Company’s knowledge, is threatened or imminent.
(t)
Intellectual Property
Rights . The Company and
its subsidiaries own or possess sufficient trademarks, trade names,
patent rights, copyrights, domain names, licenses, approvals, trade
secrets and other similar rights (collectively, “Intellectual
Property Rights”) necessary to conduct their respective
businesses as now conducted; and the expected expiration of any of
such Intellectual Property Rights would not result in a Material
Adverse Change. Neither the Company nor any of its subsidiaries has
received any notice of infringement or conflict with asserted
Intellectual Property Rights of others, which infringement or
conflict, if the subject of an unfavorable decision, would result
in a Material Adverse Change. The Company is not a party to or
bound by any options, licenses or agreements with respect to the
Intellectual Property Rights of any other person or entity that are
required to be set forth in the Prospectus and are not described in
all material respects. None of the technology employed by the
Company has been obtained or is being used by the Company in
violation of any contractual obligation binding on the
Company or, to
the Company’s knowledge, any of its officers, directors or
employees or otherwise in violation of the rights of any persons,
which violations would, individually or in the aggregate, result in
a Material Adverse Change.
(u)
All Necessary Permits,
etc . The Company and
each subsidiary possess such valid and current material licenses,
certificates, authorizations or permits issued by, and have made
all material declarations and filings with, the appropriate state,
federal or foreign regulatory agencies or bodies necessary to
conduct their respective businesses, and neither the Company nor
any subsidiary has received any notice of proceedings relating to
the revocation or modification of, or non-compliance with, any such
license, certificate, authorization or permit which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, could result in a Material Adverse Change.
(v)
Title to Properties
. The Company and each of its
subsidiaries have good and marketable title to all the properties
and assets reflected as owned in the financial statements referred
to in Section 1(o) above (or elsewhere in the Registration
Statement, the Time of Sale Information and the Prospectus), in
each case free and clear of any security interests, mortgages,
liens, encumbrances, equities, claims and other defects, except
such as do not materially and adversely affect the value of such
property, do not materially interfere with the use made or proposed
to be made of such property by the Company or such subsidiary and
could not reasonably be expected, individually or in the aggregate,
to result in a Material Adverse Change. The real property,
improvements, equipment and personal property held under lease by
the Company or any subsidiary are held under valid and enforceable
leases, with such exceptions as are not material and do not
materially interfere with the use made or proposed to be made of
such real property, improvements, equipment or personal property by
the Company or such subsidiary.
(w)
Tax Law Compliance
. The Company and its subsidiaries
have filed all necessary federal, state and foreign income and
franchise tax returns and have paid all taxes required to be paid
by any of them and, if due and payable, any related or similar
assessment, fine or penalty levied against any of them, except as
may be being contested in good faith and by appropriate
proceedings. The Company has made adequate charges, accruals and
reserves in the applicable financial statements referred to in
Section 1(o) above in respect of all federal, state and foreign
income and franchise taxes for all periods as to which the tax
liability of the Company or any of its subsidiaries has not been
finally determined.
(x)
Company Not an “Investment
Company” . The
Company has been advised of the rules and requirements under the
Investment Company Act of 1940, as amended (the “Investment
Company Act”). The Company is not, and after receipt of
payment for the Securities will not be, an “investment
company” within the meaning of Investment Company Act and
will conduct its business in a manner so that it will not become
subject to the Investment Company Act.
(y)
Insurance
. Each of the Company and its
subsidiaries is insured by recognized, financially sound and
reputable institutions with policies in such amounts and with such
deductibles and covering such risks as are generally deemed
adequate and
customary for
their businesses including, but not limited to, policies covering
property owned or leased by the Company and its subsidiaries
against theft, damage, destruction, acts of vandalism and
earthquakes except where the failure to have such insurance would
not result in a Material Adverse Change. The Company has no reason
to believe that it or any subsidiary will not be able (i) to renew
its existing insurance coverage as and when such policies expire or
(ii) to obtain comparable coverage from similar institutions as may
be necessary or appropriate to conduct its business as now
conducted and at a cost that would not result in a Material Adverse
Change.
(z)
No Price Stabilization or
Manipulation . The
Company has not taken and will not take, directly or indirectly,
any action designed to or that might be reasonably expected to
cause or result in stabilization or manipulation of the price of
the Securities to facilitate the sale or resale of the
Securities.
(aa)
Related Party
Transactions . There are
no relationships or related-party transactions involving the
Company or any of its subsidiaries or any other person required to
be described or incorporated by reference in the Registration
Statement, the Time of Sale Information and the Prospectus which
have not been described or incorporated as required.
(bb)
No Unlawful Contributions or
Other Payments . Neither
the Company nor any of its subsidiaries has made any contribution
or other payment to any official of, or candidate for, any federal,
state or foreign office in violation of any law which violation is
required to be disclosed in the Registration Statement, the Time of
Sale Information and the Prospectus.
(cc)
ERISA Compliance
. The Company and its subsidiaries
and any “employee benefit plan” (as defined under the
Employee Retirement Income Security Act of 1974, as amended, and
the regulations and published interpretations thereunder
(collectively, “ERISA”)) established or maintained by
the Company, its subsidiaries or their “ERISA
Affiliates” (as defined below) are in compliance in all
material respects with ERISA. “ERISA Affiliate” means,
with respect to the Company or any of its subsidiaries, any member
of any group of organizations described in Sections 414(b),(c),(m)
or (o) of the Internal Revenue Code of 1986, as amended, and the
regulations and published interpretations thereunder (the
“Code”) of which the Company or such subsidiary is a
member. No “reportable event” (as defined under ERISA)
has occurred or is reasonably expected to occur with respect to any
“employee benefit plan” established or maintained by
the Company, its subsidiaries or any of their ERISA Affiliates. No
“employee benefit plan” established or maintained by
the Company, its subsidiaries or any of their ERISA Affiliates, if
such “employee benefit plan” were terminated, would
have any “amount of unfunded benefit liabilities” (as
defined under ERISA). None of the Company, its subsidiaries nor any
of their ERISA Affiliates has incurred or reasonably expects to
incur any liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any “employee benefit
plan” or (ii) Sections 412, 4971, 4975 or 4980B of the Code.
Each “employee benefit plan” established or maintained
by the Company, its subsidiaries or any of their ERISA Affiliates
that is intended to be qualified under Section 401(a) of the Code
is so qualified
and nothing has
occurred, whether by action or failure to act, which would cause
the loss of such qualification, which could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse
Change.
(dd)
Brokers . There is no broker, finder or other party that
is entitled to receive from the Company any brokerage or
finder’s fee or other fee or commission as a result of any
transactions contemplated by the Transaction Documents.
(ee)
No Outstanding Loans or Other
Indebtedness . There are
no outstanding loans, advances (except normal advances for business
expenses in the ordinary course of business) or guarantees of
indebtedness by the Company to or for the benefit of any of the
executive officers or directors of the Company, except as disclosed
in the Registration Statement, the Time of Sale Information and the
Prospectus to the extent required to be so disclosed.
(ff)
Compliance with Laws
. The Company has not been advised,
and has no reason to believe, that it or any of its subsidiaries is
not conducting business in compliance with all applicable laws,
rules and regulations of the jurisdictions in which it is
conducting business, except where failure to be so in compliance
would not result in a Material Adverse Change.
(gg)
Statistical and Market
Data . Nothing has come
to the attention of the Company that has caused the Company to
believe that the statistical and market-related data included or
incorporated in the Registration Statement, the Time of Sale
Information and the Prospectus is not based on or derived from
sources that are reliable and accurate in all material
respects.
(hh)
Sarbanes-Oxley Act
. There is and has been no failure
on the part of the Company or any of the Company’s directors
or officers, in their capacities as such, to comply with any
provision of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the
“Sarbanes-Oxley Act”), including Section 402 related to
loans and Sections 302 and 906 related to
certifications.
(ii)
Status under the Securities
Act . The Company is not
an ineligible issuer, and as of December 31, 2005, the Company is a
well-known seasoned issuer, in each case as defined under the
Securities Act. The Company has paid the registration fee for this
offering pursuant to Rule 457 under the Securities Act.
Any certificate
signed by an officer of the Company and delivered to the
Representative or to counsel for the Underwriters shall be deemed
to be a representation and warranty by the Company to each
Underwriter as to the matters set forth therein.
The Company
acknowledges that the Underwriters and, for purposes of the
opinions to be delivered pursuant to Section 6 hereof, counsel to
the Company and counsel to the Underwriters, will rely upon the
accuracy and truthfulness of the foregoing representations and
hereby consents to such reliance.
4.
Further Agreements of the
Company . The Company
covenants and agrees with each Underwriter that:
(a)
Required Filings
. The Company will file the final
Prospectus with the Commission within the time periods specified by
Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act,
will file any Issuer Free Writing Prospectus (including the Term
Sheet in the form of Annex D hereto) 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 business day
next succeeding the date of this Agreement in such quantities as
the Representative may reasonably request.
(b)
Delivery of Copies
. The Company will deliver, without
charge, to each Underwriter during the Prospectus Delivery Period,
as many copies of the Prospectus (including all amendments and
supplements thereto and documents incorporated by reference
therein) and each Issuer Free Writing Prospectus as the
Representative may reasonably request. As used herein, the term
“Prospectus Deliv
