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Exhibit 1.1
AVISTA
CORPORATION
First Mortgage Bonds,
5.95% Series due 2018
Underwriting
Agreement
March 27,
2008
UBS Securities LLC
BNY Capital Markets, Inc.
Goldman, Sachs &
Co.,
As Representatives of the
several Underwriters
Named in Schedule I
hereto,
c/o UBS Securities LLC
677 Washington Boulevard
Stamford, Connecticut 06901
Ladies and Gentlemen:
Avista Corporation, a
Washington corporation (the “ Company ”),
proposes, subject to the terms and conditions stated herein, to
issue and sell to the Underwriters named in Schedule I hereto
(collectively, the “ Underwriters ”) for whom
you are acting as representatives (in such capacity the “
Representatives ”) an aggregate of $250,000,000
principal amount of its First Mortgage Bonds, 5.95% Series due 2018
(the “ Securities ”). The Securities are to be
issued as a series of bonds under the Mortgage and Deed of Trust,
dated as of June 1, 1939, between the Company and Citibank,
N.A., as trustee (the “ Trustee ”), as amended
and supplemented by various supplemental indentures including the
Forty-second Supplemental Indenture, to be dated as of
April 1, 2008. Such Mortgage and Deed of Trust, as so amended
and supplemented, and such Forty-second Supplemental Indenture are
hereinafter called, respectively, the “ Mortgage
” and the “ Supplemental Indenture
”.
1. The Company represents and
warrants to, and agrees with, each of the Underwriters
that:
(a) An “automatic shelf
registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “ Act ”)
on Form S-3 (File No. 333-139239) in respect of the Securities
has been filed with the Securities and Exchange Commission (the
“ Commission ”) not earlier than three years
prior to the date hereof; such registration statement, and any
post-effective amendment thereto, became effective on filing; and
no stop order suspending the effectiveness of such registration
statement or any part thereof has been issued and no proceeding for
that purpose has been initiated
or, to the best knowledge of
the Company, threatened by the Commission, and no notice of
objection of the Commission to the use of such registration
statement or any part thereof or any post-effective amendment
thereto pursuant to Rule 401(g)(2) under the Act has been received
by the Company; in this agreement,
(i) the base prospectus filed
as part of such registration statement, in the form in which it has
most recently been filed with the Commission on or prior to the
date of this Agreement, is called the “ Basic
Prospectus ”;
(ii) any preliminary
prospectus (including any preliminary prospectus supplement)
relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act is called a “ Preliminary
Prospectus ”;
(iii) such registration
statement, as deemed revised pursuant to Rule 430B(f)(1) under the
Act on the effective date of such registration statement for
purposes of Section 11 of the Act (as such section applies to
the Company and the Underwriters for the Securities pursuant to
Rule 430B(f)(2) under the Act (the “ Effective Date
”)), including the exhibits thereto and all documents
incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Act at the Effective Date but excluding the Statement
of Eligibility on Form T-1, is called the “ Registration
Statement ”;
(iv) the Basic Prospectus, as
amended and supplemented immediately prior to the Applicable Time
(as defined in Section 1(d) hereof), is called the “
Pricing Prospectus ”;
(v) the form of the final
prospectus relating to the Securities filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof is called the “ Prospectus
”;
(vi) any reference to the
Basic Prospectus, the Pricing 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 Act, as of the date of such
prospectus;
(vii) any reference to any
amendment or supplement to the Basic Prospectus, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include the form of prospectus contained in any post-effective
amendment to the Registration Statement, any prospectus supplement
relating to the Securities filed with the Commission pursuant to
Rule 424(b) under the Act and any documents filed under the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), and incorporated therein, in each
case after the date of the Basic Prospectus, such Preliminary
Prospectus, or the Prospectus, as the case may be;
(viii) any reference to any
amendment to the Registration Statement shall be deemed to refer to
and include any document of the Company filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective
date of the Registration Statement that is incorporated by
reference in the Registration Statement; and
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(ix) any “issuer free
writing prospectus” as defined in Rule 433(h) under the Act
relating to the Securities (including the Final Term Sheet (as
defined below) prepared and filed pursuant to Section 5(a)) is
called an “ Issuer Free Writing Prospectus
”;
(b) No order preventing or
suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission;
(c) the Pricing Prospectus,
at the time of filing thereof with the Commission, conformed in all
material respects to the requirements of the Act and the Trust
Indenture Act of 1939, as amended (the “ Trust Indenture
Act ”) and the rules and regulations of the Commission
thereunder, and did 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;
provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for
use therein;
(d) For the purposes of this
Agreement, the “Applicable Time” is 2:24 p.m. (Eastern
time) on the date of this Agreement; the Pricing Prospectus, as
supplemented by the Final Term Sheet prepared and filed pursuant to
Section 5(a) hereof (together the “ Pricing
Disclosure Package ”), as of the Applicable Time, did not
include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein; no Issuer Free Writing
Prospectus listed on Schedule II(a) hereto conflicted or will
conflict with the information contained in the Registration
Statement, the Pricing Prospectus or the Prospectus; and no such
Issuer Free Writing Prospectus, considered together with the
Pricing Disclosure Package as of the Applicable Time, included any
untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty shall not apply to statements or omissions made in an
Issuer Free Writing Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use
therein;
(e) The documents
incorporated by reference in the Pricing Prospectus and the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading; any further documents
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so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents are filed with the Commission, as the
case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for
use therein; and no such documents were filed with the Commission
since the Commission’s close of business on the business day
immediately prior to the date of this Agreement and prior to the
time of the execution and delivery of this Agreement, except as set
forth on Schedule II (b) hereto;
(f) The Registration
Statement conforms, and any further amendments or supplements to
the Registration Statement will conform, in all material respects
to the requirements of the Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and do not and
will not, as of the Effective Date, contain an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through the
Representatives expressly for use therein;
(g) The Prospectus and any
amendments or supplements thereto, when filed with the Commission,
will conform in all material respects to the requirements of the
Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder, and the Prospectus and any amendments
and supplements thereto, when they are filed with the Commission
and at the Time of Delivery (as defined below), will not include an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements made, in light of
the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representatives expressly for
use therein;
(h) Except as set forth in or
contemplated by the Pricing Prospectus, (i) since the
respective dates as of which information is given in the
Registration Statement and the Pricing Prospectus, there has not
been (A) any material adverse change in or affecting the
business, financial condition, shareholders’ equity or
results of operations of the Company and its subsidiaries,
considered as a whole, or any development reasonably expected to
result in such a material adverse change (in each case, a “
Material Adverse Change ”), (B) any transaction
entered into by the Company or any subsidiary thereof which is
material to the Company and its subsidiaries as a whole other than
transactions in the ordinary course of business, and (C) any
change in the capital stock or long-term debt of the Company or any
of its subsidiaries (except for shares of common stock issued under
the Company’s Dividend-Reinvestment and Stock
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Purchase Plan and employee
benefit plans and director and/or executive compensation plans and
except for scheduled maturities of long-term debt) and
(ii) neither the Company nor any of its subsidiaries has any
contingent obligation which is material to the Company and its
subsidiaries as a whole;
(i) The Company has been duly
incorporated and is validly existing in good standing as a
corporation under the laws of the State of Washington, is duly
qualified to do business and in good standing as a foreign
corporation under the laws of the States of Idaho, Montana and
Oregon, and has corporate and other power and authority and has all
material required approvals and authorizations to own, lease and
operate its properties, and to transact an electric and/or gas
public utility business in such jurisdictions;
(j) The Company has an
authorized capitalization as set forth in the Pricing 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;
(k) Avista Capital, Inc.
(“ Avista Capital ”) and Advantage IQ, Inc.
(“ Advantage IQ ”) are duly incorporated and
validly existing in good standing under the laws of the State of
Washington and have corporate and other power and authority and
have all material required approvals and authorizations to own,
lease and operate their properties, and to transact their
business;
(l) All of the issued shares
of capital stock of Avista Capital and Advantage IQ have been duly
and validly authorized and issued, are fully paid and
non-assessable; 1,715,000 shares of Avista Capital’s capital
stock are issued and outstanding and the Company is the record and
beneficial owner of all shares of such capital stock; and
31,563,052 shares of Advantage IQ’s capital stock are issued
and outstanding (which consist of (i) 2,031,814 shares of
non-voting preferred stock and (ii) 29,531,238 shares of
common stock) and Avista Capital is the record and beneficial owner
of 1,849,698 shares of such preferred stock and 27,540,570 shares
of such common stock; and the shares of capital stock of Avista
Capital and Advantage IQ that are owned directly or indirectly by
the Company are owned free and clear of all security interests,
liens, encumbrances, equities and claims, except for a security
interest granted by Avista Capital to Shell Energy North America
(U.S.), L.P. (formerly known as Coral Energy Holding, L.P.)
(“Shell Energy”) in 13,770,285 shares of Advantage IQ
common stock;
(m) This Agreement has been
duly authorized, executed and delivered by the Company;
(n) The Securities have been
duly authorized by all necessary corporate action on the part of
the Company, and have been duly executed by the Company and, when
duly authenticated and delivered by the Trustee under the Mortgage,
and issued, delivered and paid for in accordance with this
Agreement, will be duly issued and delivered by the Company and
will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms,
subject to (i) bankruptcy, insolvency, reorganization,
arrangement, moratorium
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and other laws of general
applicability relating to or affecting creditors’ rights and
(ii) general principles of equity, whether such enforceability
is considered a proceeding in equity or at law, and by rules of law
governing specific performance, injunction relief, foreclosure,
receivership and other equitable remedies (the exceptions referred
to in clauses (i) and (ii) being hereinafter called,
collectively, the “ Exceptions ”), and are
entitled to the benefits provided by the Mortgage; the Securities
will be substantially in the form previously delivered to the
Representatives; and the Securities will conform in all material
respects to the description thereof contained in the Pricing
Disclosure Package and the Prospectus;
(o) The Mortgage has been
duly authorized and the Mortgage (excluding the Supplemental
Indenture) has been duly executed and delivered; when the
Supplemental Indenture is duly executed, delivered and
appropriately recorded, the Mortgage will constitute a valid and
legally binding instrument, enforceable in accordance with its
terms, subject to the Exceptions and except, further, to the extent
that the law of the states in which the mortgaged property is
located may limit or deny certain remedies provided for in the
Mortgage; the Mortgage has been duly qualified under the Trust
Indenture Act; and the Mortgage will conform in all material
respects to the description thereof contained in the Pricing
Disclosure Package and the Prospectus;
(p) The Company has good and
marketable title in fee simple to all of its real estate and fixed
properties and good title to all of its other property, subject
only (i) to the lien of the Mortgage, (ii) to leases of
minor portions of the Company’s property to others for uses
which do not interfere with the Company’s business;
(iii) to leases of certain property of the Company not used in
its utility business, (iv) to Excepted Encumbrances (as
defined in the Mortgage) and (v) to encumbrances, defects and
irregularities customarily found in properties of like size and
character, which, in the Company’s opinion, do not materially
impair the use of the property affected thereby in the operation of
the business of the Company; upon the due execution, delivery and
appropriate recording of the Supplemental Indenture, the Mortgage
will constitute, subject only to the exceptions referred to in
clauses (ii) through (v) above, a valid first mortgage
lien for the security of the Securities and all other bonds issued
and presently outstanding thereunder on such properties, which
include substantially all of the physical properties and franchises
of the Company other than those expressly excepted;
(q) The description in the
Mortgage of the properties intended to be subject to the Mortgage
is adequate to constitute a lien thereon; and the Mortgage
(excluding the Supplemental Indenture) has been duly and properly
recorded in the proper offices of the respective counties in which
the real estate and other physical properties of the Company are
located, and the Supplemental Indenture will be so recorded
forthwith, and no other recording or filing of the Mortgage is or
will be necessary to maintain or perfect of record the lien
thereof;
(r) The issue and sale of the
Securities and the compliance by the Company with all of the
provisions of the Securities, the Mortgage and this Agreement and
the consummation by the Company of the transactions herein and
therein contemplated will not (i) violate the Company’s
Restated Articles of Incorporation, as
6
amended, or By-laws or
(ii) result in a breach or violation of any of the terms or
provisions of, or constitute a default under, (A) any statute
or, to the knowledge of the Company, any order, rule or regulation
of any court or any federal or state regulatory authority or other
governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties, or (B) any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, which breach,
violation or default referred to in this clause (ii) would
individually, or in the aggregate, have, or would be reasonably
expected to have, a material adverse effect on the business,
financial condition, shareholders’ equity or results of
operations of the Company and its subsidiaries considered as a
whole (in each case, a “ Material Adverse Effect
”);
(s) The Washington Utilities
and Transportation Commission (the “ WUTC ”),
the Idaho Public Utilities Commission (the “ IPUC
”) and the Public Utility Commission of Oregon (the “
OPUC ”) have issued orders authorizing the issuance
and sale by the Company of the Securities on the terms set forth in
or contemplated by such orders; the Montana Pubic Service
Commission (the “ MPSC ”) has issued an order
disclaiming jurisdiction over the issuance of securities and the
creation of liens by the Company pursuant to, and on the terms set
forth in such order (such order, collectively with the aforesaid
orders of the WUTC, the IPUC and the OPUC, being hereinafter called
the “ Commission Orders ”); the Commission
Orders are in full force and effect as of the date hereof; and,
except for (i) informational filings required under the
Commission Orders, (ii) the registration of the Securities
under the Act and (iii) such registrations, qualifications or
other filings as may be required under state securities or Blue Sky
laws in connection with the distribution of the Securities by the
Underwriters, no further approval, authorization, consent or other
order of or registration or other filing with or qualification by
any court or governmental agency or body is required for the
issuance and sale by the Company of the Securities or the
consummation by the Company of the transactions contemplated by
this Agreement or the Mortgage.
(t) None of the Company,
Avista Capital and Advantage IQ is (i) currently in violation
of its Restated Articles of Incorporation or By-laws or,
(ii) except as set forth in the Pricing Prospectus, in default
in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties may be
bound which default, in the case of clause (ii) would have, or
would be reasonably expected to have, a Material Adverse Effect,
except for any such default in the performance or observance of any
such obligation, agreement, covenant or condition that has been
waived in accordance with the applicable agreement;
(u) Other than as set forth
in the Pricing Prospectus, neither the Company nor any of its
subsidiaries (i) is in violation of any statute, or any rule,
regulation, decision or order of any governmental agency or body or
any court relating to the use, disposal or release of hazardous or
toxic substances or relating to the
7
protection or restoration of
the environmental or human exposure to hazardous or toxic
substances (collectively, “ environmental laws
”), (ii) does not own or operate any real property which
to its knowledge is contaminated with any substance that is subject
to any environmental laws, (iii) is not to its knowledge
liable for any off-site disposal or contamination pursuant to any
environmental laws, and (iv) is not subject to any claim
relating to any environmental laws and the Company is not aware of
any pending investigation which could reasonably be expected to
lead to such a claim, which, in the case of (i), (ii), (iii), or
(iv), would reasonably be expected to result in a Material Adverse
Effect;
(v) The statements set forth
in the Pricing Prospectus and the Prospectus under the captions
“Description of the Offered Bonds” and
“Description of the Bonds”, insofar as they purport to
constitute a summary of the terms of the Securities, and under the
caption “Underwriting”, insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate and fairly present the information purported
to be given;
(w) Other than as set forth
in the Pricing 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, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect; and, to the best of the
Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(x) 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 United States Investment Company Act of 1940, as
amended (the “ Investment Company Act
”);
(y) (A) (i) At the time
of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the 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 Act) made any offer relating to the
Securities in reliance on the exemption of Rule 163 under the Act,
the Company was a “well-known seasoned issuer” as
defined in Rule 405 under the 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 Act) of the
Securities, the Company was not an “ineligible issuer”
as defined in Rule 405 under the Act;
(z) The Company is subject to
the reporting requirements of Section 13 or 15(d) of the
Exchange Act;
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(aa) The financial statements
included or incorporated by reference in the Pricing Disclosure
Package and the Prospectus present fairly in all material respects
the financial position, results of operations and cash flows of the
Company at the respective dates and for the respective periods
specified and, except as otherwise stated in the Pricing Disclosure
Package and the Prospectus, such financial statements have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis during the periods
involved. The Company has no material contingent obligation which
is not disclosed in the Pricing Disclosure Package and the
Prospectus.
(bb) Deloitte &
Touche LLP, who have audited certain financial statements of the
Company and its subsidiaries and have audited the Company’s
internal control over financial reporting, is a registered public
accounting firm, and is independent with respect to the Company and
its subsidiaries, each within the meaning of the Exchange Act and
the rules and regulations of the Commission thereunder and the
rules and regulations of the Public Company Accounting Oversight
Board;
(cc) The Company maintains
internal control over financial reporting (as such term is defined
in Rule 13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the
Company’s principal executive officer and principal financial
officer, or under their supervision, to provide reasonable
assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting principles; the
Company’s internal control over financial reporting is
effective; and the Company is not aware of any material weaknesses
in its internal control over financial reporting;
(dd) Since the date of the
latest audited financial statements included or incorporated by
reference in the Pricing Prospectus, there has been no change in
the Company’s internal control over financial reporting that
has materially affected, or is reasonably likely to materially
affect, the Company’s internal control over financial
reporting; and
(ee) The Company maintains
disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements
of the Exchange Act and have been designed to ensure that material
information relating to the Company and its subsidiaries is
communicated to the Company’s principal executive officer and
principal financial officer. The Company’s disclosure
controls and procedures are effective.
2. Subject to the terms and
conditions herein set forth, the Company agrees to issue and sell
to each of the Underwriters, severally and not jointly, and each of
the Underwriters agrees, severally and not jointly, to purchase
from the Company, at a purchase price of 99.016% of the principal
amount thereof, plus accrued interest, if any, from April 3,
2008 to the Time of Delivery hereunder, the principal amount of
Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
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3. Upon the authorization by
the Representatives of the release of the Securities, the several
Underwriters propose to offer the Securities for sale upon the
terms and conditions set forth in this Agreement and the
Prospectus.
4. (a) The Securities to be
purchased by each Underwriter hereunder will be represented by one
or more definitive global Securities in book-entry form to be
deposited with The Depository Trust Company (“ DTC
”) or its designated custodian. The Company will deliver the
global Securities to DTC or such custodian to be credited to the
account of the Representatives, for the account of each
Underwriter, against payment by or on behalf of such Underwriter of
the purchase price therefor by wire transfer of Federal (same day)
funds to the account specified by the Company to the
Representatives, by causing DTC to credit the Securities to the
account of the Representatives at DTC. The Company will cause the
certificates representing the Securities to be made available to
the Representatives for checking at least twenty-four hours prior
to the Time of Delivery (as defined below) at the office of DTC or
its designated custodian (the “ Designated Office
”). The time and date of such delivery and payment shall be
10:00 a.m., New York City time, on April 3, 2008 or such other
time and date as the Representatives and the Company may agree upon
in writing. Such time and date are herein called the “
Time of Delivery ”; and
(b) The documents to be
delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross
receipt for the Securities and any additional documents requested
by the Underwriters pursuant to Section 8(k) hereof, will be
delivered at the offices of Dewey & LeBoeuf LLP, 1301
Avenue of the Americas, New York, New York 10019 (the “
Closing Location ”), and the Securities will be
delivered at the Designated Office, all at the Time of Delivery. A
meeting will be held at the Closing Location at 2:00 p.m., New York
City time, on the New York Business Day next preceding such Time of
Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for
review by the parties hereto. For the purposes of this Agreement,
“ New York Business Day ” shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday, which is not a day
on which banking institutions in New York are generally authorized
or obligated by law or executive order to close.
5. The Company agrees with
each of the Underwriters:
(a) To prepare the Prospectus
in a form approved by the Representatives and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission’s close of business on the second business day
following the execution and delivery of this Agreement; to make no
further amendment or any supplement to the Registration Statement,
the Basic Prospectus or Prospectus prior to the last Time of
Delivery which shall be reasonably disapproved by the
Representatives promptly after reasonable notice thereof; to advise
the Representatives, promptly after the Company receives notice
thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed and to
furnish the Representatives
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with copies thereof; to
prepare a final term sheet, containing solely the terms of the
Securities (to the extent not contained in the Pricing Prospectus)
and the terms of the offering thereof, in a form attached as
Schedule III hereto (the “Final Term Sheet”), and to
file such Final Term Sheet pursuant to Rule 433(d) under the Act
within the time required by such Rule; to file promptly all reports
and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus (or in lieu thereof, the notice referred
to in Rule 173(a) under the Act) is required in connection with the
offering or sale of the Securities; to advise the Representatives,
promptly after the Company receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus, the Prospectus or
other prospectus in respect of the Securities, of any notice of
objection of the Commission to the use of the Registration
Statement or any post-effective amendment thereto contemplated by
Rule 401(g) (2) under the Act, of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus, the Prospectus or other
prospectus or suspending any such qualification, promptly to use
all commercially reasonable efforts to obtain the withdrawal of
such order; and in the event of any such issuance of a notice of
objection, promptly to take such steps including, without
limitation, amending the Registration Statement or filing a new
registration statement, at its own expense, as may be necessary to
permit offers and sales of the Securities by the Underwriters
(references herein to the Registration Statement shall include any
such amendment or new registration statement);
(b) Promptly from time to
time to take such action as the Representatives may reasonably
request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as the Representatives may
request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the
Securities, provided that in connection therewith the Company shall
not be required to qualify as a foreign corporation or to file a
general consent to service of process in any
jurisdiction;
(c) Prior to 10:00 a.m., New
York City time, on the New York business day succeeding the date of
this Agreement, or as soon thereafter as may be reasonably
practicable, to furnish the Underwriters with written and
electronic copies of the Prospectus in such quantities as the
Representatives may from time to time reasonably request, and, if
the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is required at any time
prior to the expiration of nine months after the time of issue of
the Prospectus in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make
11
the statements therein, in
the light of the circumstances under which they were made when such
Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is delivered, not misleading, or, if for any
other reason it shall be necessary during such period to amend or
supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to
comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the Representatives and upon their reasonable request to
file such document and to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many written
and electronic copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect
such compliance, and in case any Underwriter is required to deliver
a prospectus (or in lieu thereof, the notice referred to in Rule
173(e) under the Act) in connection with sales of any of the
Securities at any time nine months or more after the time of issue
of the Prospectus, upon their request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many
written and electronic copies as such Underwriter may request of an
amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(d) To make generally
available to its securityholders as soon as practicable, but in any
event not later than eighteen months after the effective date of
the Registration Statement (as defined in Rule 158(c) under the
Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) covering a period of at least 12 months
beginning after the later of (i) the effective date of the
most recent post-effective amendment to the Registration Statement
to become effective prior to the date of this Agreement and
(ii) the date of the Company’s most recent Annual Report
on Form 10-K filed with the Commission prior to the date of this
Agreement, which will satisfy the provisions of Section 11(a)
of the Act and the rules and regulations thereunder including Rule
158;
(e) During the period
beginning from the date hereof and continuing to and including the
later of (i) the completion of the distribution of the
Securities, as shall be promptly notified to the Company by the
Representatives upon such completion, but in no event shall such
period exceed 90 days from the Time of Delivery, and (ii) the
Time of Delivery, not to offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, any debt securities of
the Company that are substantially similar to the Securities,
without the prior written consent of the Representatives (it being
understood that this paragraph shall not prohibit the issuance of
commercial paper or other debt securities with scheduled maturities
of less than one year, debt securities issued in connection with
any credit facility, or debt securities issued as collateral for
other obligations); and
(f) To use the net proceeds
received by it from the sale of the Securities pursuant to this
Agreement in the manner specified in the Pricing Prospectus under
the caption “Use of Proceeds”; and
12
(g) To pay the required
Commission filing fees relating to the Securities within the time
required by Rule 456(b)(1) under the Act without regard to the
proviso therein and otherwise in accordance with rules 456(b) and
457(r) under the Act.
6. (a)(i) The Company
represents and agrees that, other than the Final Term Sheet
prepared and filed pursuant to Section 5(a) hereof, without
the prior consent of the Representatives, it has not made and will
not make any offer relating to the Securities that would constitute
a “free writing prospectus” as defined in Rule 405
under the Act;
(ii) each Underwriter
represents and agrees that, without the prior consent of the
Company and the Representatives, other than (x) one or more
term sheets relating to the Securities containing customary
information that do not require the Company to file any material
pursuant to Rule 433(d) except for the Final Term Sheet prepared
and filed pursuant to Section 5(a) hereof and (y) any
Bloomberg L.L.P. or other electronic communication regarding
comparable bond prices that does not require the Company to file
any material pursuant to Rule 433(d), it has not made and will not
make any offer relating to the Securities that would constitute a
free writing prospectus; and
(iii) any such free writing
prospectus the use of which has been consented to by the Company or
the Representatives, as the case may be, is listed on Schedule II
(a) hereto;
(b) The Company has complied
and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus listed on Schedule
II(a) hereto or of which the Company shall have knowledge,
including timely filing with the Commission or retention where
required and legending; and
(c) The Company agrees that
if delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is required at any time
following the issuance of an Issuer Free Writing Prospectus listed
on Schedule II(a) hereto and prior to the expiration of nine months
after the Time of Delivery, and if, at such time, any event
occurred or occurs as a result of which such Issuer Free Writing
Prospectus would conflict with the information in the Registration
Statement, the Pricing Prospectus or the Prospectus or would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances then prevailing, not misleading,
then the Company will give prompt notice thereof to the
Representatives and, if requested by the Representatives, will
prepare and furnish without charge to each Underwriter an Issuer
Free Writing Prospectus or other document which will correct such
conflict, statement or omission; provided, however, that
this covenant shall not apply to any statements or omissions in an
Issuer Free Writing Prospectus made in reliance upon and in
conformity with information furnished by an Underwriter for use
therein.
7. The Company hereby
covenants and agrees with the several Underwriters that the Company
will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company’s counsel and
accountants in connection with the
13
registration of the Securities under the
Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any preliminary
prospectus, the Basic Prospectus, the Pricing Prospectus and the
Prospectus and amendments and supplements thereto and the mailing
and delivering of copies thereof
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