Exhibit 1.1
EXECUTION VERSION
WEATHERFORD INTERNATIONAL LTD.
(a
Bermuda exempted company)
5.15%
Senior Notes due 2013
6.00%
Senior Notes due 2018
7.00%
Senior Notes due 2038
Guaranteed by
WEATHERFORD INTERNATIONAL, INC.
(a
Delaware corporation)
UNDERWRITING AGREEMENT
Dated:
March 19, 2008
WEATHERFORD INTERNATIONAL LTD.
(a
Bermuda exempted company)
$500,000,000 5.15% Senior Notes due 2013
$500,000,000 6.00% Senior Notes due 2018
$500,000,000 7.00% Senior Notes due 2038
Guaranteed by
WEATHERFORD INTERNATIONAL, INC.
(a
Delaware corporation)
UNDERWRITING AGREEMENT
March 19, 2008
Goldman,
Sachs & Co.
Deutsche Bank Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
as Representatives of the several
Underwriters
c/o
Goldman, Sachs & Co.,
85 Broad Street
New York, New York 10004
Ladies
and Gentlemen:
Weatherford International Ltd., a
Bermuda exempted company (the “Company”), and
Weatherford International, Inc., a Delaware corporation (the
“Guarantor”), confirm their agreement with Goldman,
Sachs & Co. (the “Lead Representative”) and each of
the other Underwriters named in Schedule A hereto
(collectively, the “Underwriters”, which term shall
also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom Goldman, Sachs & Co.,
Deutsche Bank Securities Inc. and Merrill Lynch, Pierce, Fenner
& Smith Incorporated are acting as representatives (in such
capacity, the “Representatives”), with respect to the
issue and sale by the Company and the purchase by the Underwriters,
acting severally and not jointly, of the respective principal
amounts set forth in said Schedule A of $500,000,000 aggregate
principal amount of the Company’s 5.15% Senior Notes due
2013, $500,000,000 aggregate principal amount of the
Company’s 6.00% Senior Notes due 2018 and $500,000,000
aggregate principal amount of the Company’s 7.00% Senior
Notes due 2038 (collectively, the “Notes”), guaranteed
on an unsecured basis pursuant to guarantees (the
“Guarantees”) provided by the Guarantor. The Notes and
the Guarantees are hereinafter collectively referred to as the
“Securities”. The Securities are to be issued pursuant
to an indenture dated as of October 1, 2003 (the
“Indenture”) between the Company, the Guarantor and
Deutsche Bank Trust Company Americas, as trustee (the
“Trustee”). The term “Indenture,” as used
herein, includes the First Supplemental Indenture to be dated the
Closing Time establishing the form and terms of the Securities (the
“Supplemental Indenture”). Securities issued in
book-entry form will be issued to Cede & Co. as nominee of
The
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Depository Trust Company (“DTC”) pursuant to a letter
agreement, to be dated as of the Closing Time (as defined in
Section 2(b) hereof), among the Company, the Trustee and DTC.
The Company and the Guarantor
understand that the Underwriters propose to make a public offering
of the Securities as soon as the Representatives deem advisable
after this Agreement has been executed and delivered and the
Indenture has been qualified under the Trust Indenture Act of 1939,
as amended (the “1939 Act”).
The Company and the Guarantor have
filed with the U.S. Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3
(No. 333-135244), including the related base prospectus (the
“Base Prospectus”), covering the registration of the
Securities under the U.S. Securities Act of 1933, as amended (the
“1933 Act”). The Company and the Guarantor have also
filed with the Commission a preliminary prospectus supplement
relating to the Securities and supplementing the Base Prospectus.
Promptly after execution and delivery of this Agreement, the
Company and the Guarantor will prepare and file a final prospectus
supplement in accordance with the provisions of Rule 430A
(“Rule 430A”) of the rules and regulations of the
Commission under the 1933 Act (the “1933 Act
Regulations”) and paragraph (b) of Rule 424
(“Rule 424(b)”) of the 1933 Act Regulations. The
information included in such prospectus supplement that was omitted
from such registration statement at the time it became effective
but that is deemed to be part of such registration statement at the
time it became effective pursuant to paragraph (b) of
Rule 430A is referred to as “Rule 430A
Information.” The Base Prospectus and the preliminary
prospectus supplement to the Base Prospectus relating to the
offering of the Securities, as of the Applicable Time, is herein
called the “preliminary prospectus.” Such registration
statement, including the exhibits and any schedules thereto, at the
time it became effective, and including the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 under the
1933 Act at such time and the Rule 430A Information, is herein
called the “Registration Statement.” Any registration
statement relating to the Securities filed pursuant to Rule 462(b)
of the 1933 Act Regulations is herein referred to as the
“Rule 462(b) Registration Statement,” and after
such filing the term “Registration Statement” shall
include the Rule 462(b) Registration Statement. The final
prospectus, including the prospectus supplement, in the form first
furnished to the Underwriters for use in connection with the
offering of the Securities, is herein called the
“Prospectus”. Each issuer free writing prospectus (as
defined in Rule 433 of the 1933 Act) is identified on
Schedule B hereto and referred to herein as an “Issuer
Free Writing Prospectus”. For purposes of this Agreement, all
references to the Registration Statement, any preliminary
prospectus, the Prospectus, any Issuer Free Writing Prospectus or
any amendment or supplement to any of the foregoing shall be deemed
to include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system
(“EDGAR”).
All references in this Agreement to
financial statements and schedules and other information which is
“contained,” “included” or
“stated” in the Registration Statement, any preliminary
prospectus or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements
and schedules and other information which is incorporated by
reference in the Registration Statement, any preliminary prospectus
or the Prospectus, as the case may be; and all references in this
Agreement to the Registration Statement, any Issuer Free Writing
Prospectus, any preliminary prospectus or the Prospectus shall be
deemed to mean and include the filing of any document under the
U.S. Securities Exchange Act of 1934, as amended (the “1934
Act”), and the rules and regulations of the Commission
thereunder (the “1934 Act Regulations”) which is
incorporated by reference in the Registration Statement, such
Issuer Free Writing Prospectus, such preliminary prospectus or the
Prospectus, as the case may be. The term “Disclosure
Package” shall mean, collectively, as of the Applicable Time,
the Base Prospectus, the preliminary prospectus, any Issuer Free
Writing Prospectus, including any Permitted Free Writing Prospectus
(as defined herein), and the Final Term Sheet (as defined
herein).
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SECTION 1. Representations and
Warranties .
(a) Representations and
Warranties by the Company and the Guarantor . The Company and
the Guarantor jointly and severally represent and warrant to each
Underwriter as of the date hereof and as of the Closing Time
referred to in Section 2(b) hereof, and agrees with each
Underwriter, as follows:
1. Compliance with Registration
Requirements . The Company and the Guarantor meet the
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement, any Rule 462(b) Registration Statement and
any post-effective amendment thereto has become effective under the
1933 Act and no stop order suspending the effectiveness of the
Registration Statement, any Rule 462(b) Registration Statement or
any post-effective amendment thereto has been issued under the 1933
Act and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company or the Guarantor, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the
Registration Statement, any Rule 462(b) Registration Statement and
any parts thereof or post-effective amendments thereto became
effective (for the avoidance of doubt, including at the Applicable
Time) and at the Closing Time, the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the
1939 Act and the rules and regulations of the Commission under the
1939 Act (the “1939 Act Regulations”), 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 not misleading. Neither the Prospectus
nor any Issuer Free Writing Prospectus nor any amendments or
supplements to the Prospectus or any Issuer Free Writing
Prospectus, at the time such document or any such amendment or
supplement was issued and at the Closing Time, included or will
include an untrue statement of a material fact or omitted or will
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. As of 5:25p.m. (Eastern time) on
the date of this Agreement (the “Applicable Time”), the
Disclosure Package 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 light of the circumstances under
which they were made, not misleading. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement, the Prospectus or the
Disclosure Package made in reliance upon and in conformity with
information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement (or
any amendment thereto), the Prospectus (or any amendment or
supplement thereto) or the Disclosure Package (or any amendment or
supplement thereto), it being understood and agreed that the only
such information furnished by any Underwriter consists of the
information described as such in Section 6(b) hereof.
Each preliminary prospectus and the
Prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto complied when
so filed in all material respects with the 1933 Act Regulations and
each preliminary prospectus and the Prospectus delivered to the
Underwriters for use in connection with this offering was identical
to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
2. Company is Well-Known Seasoned
Issuer . (i) At the time the Company or any person acting
on its behalf (within the meaning, for this clause only, of
Rule 163(c) of the 1933
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Act) made any
offer relating to the Securities in reliance on the exemption of
Rule 163 of the 1933 Act, and (ii) as of the date of
the execution and delivery of this Agreement (with such date being
used as the determination date for purposes of this clause (ii)),
the Company was and is a “well-known seasoned issuer”
as defined in Rule 405 of the 1933 Act.
3. Company Not Ineligible
Issuer . (i) At the earliest time after the filing of the
most recent amendment to the Registration Statement relating to the
Securities that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2) of the
1933 Act), and (ii) as of the date of the execution and
delivery of this Agreement (with such date being used as the
determination date for purposes of this clause (ii)), the Company
was not and is not an “Ineligible Issuer” (as defined
in Rule 405 of the 1933 Act), without taking account of any
determination by the Commission pursuant to Rule 405 of the 1933
Act that it is not necessary that the Company be considered an
Ineligible Issuer.
4. Issuer Free Writing
Prospectuses . No Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of
the offering of the Securities or until any earlier date that the
Company notified or notifies the Representatives as described in
the next sentence, did, does or will include any information that
conflicted, conflicts or will conflict with the information
contained in the Registration Statement, including any document
incorporated by reference therein that has not been superseded or
modified. If at any time following issuance of an Issuer Free
Writing Prospectus there occurred or occurs an event or development
as a result of which such Issuer Free Writing Prospectus conflicted
or would conflict with the information contained in the
Registration Statement, the Company has promptly notified or will
promptly notify the Representatives and has promptly amended or
supplemented or will promptly amend or supplement, at its own
expense, such Issuer Free Writing Prospectus to eliminate or
correct such conflict. The foregoing two sentences do not apply to
statements in or omissions from any Issuer Free Writing Prospectus
based upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that
the only such information furnished by any Underwriter consists of
the information described as such in Section 6(b) hereof.
5. Distribution of Offering
Material By the Company and the Guarantor . The Company
and the Guarantor have not distributed and will not distribute,
prior to the later of the Closing Date and 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, any Issuer
Free Writing Prospectus included in Schedule B hereto, any
Permitted Free Writing Prospectus or the Registration
Statement.
6. Incorporated Documents .
The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, the Prospectus and the
Disclosure Package at the time they were or hereafter are filed
with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the 1934 Act
Regulations, and, when read together with the other information in
such Registration Statement, Prospectus or Disclosure Package, as
the case may be, at the time the Registration Statement became
effective, at the time the Prospectus was issued, at the Applicable
Time and at the Closing Time, did not and will not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading.
7. Independent Accountants .
The accountants who certified the financial statements and
supporting schedules included in the Registration Statement, the
Disclosure Package and the
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Prospectus are
an independent registered public accounting firm as required by the
1933 Act and the 1933 Act Regulations.
8. Financial Statements . The
consolidated financial statements included in the Registration
Statement, the Prospectus and the Disclosure Package present fairly
in all material respects the financial position of the Company and
its consolidated subsidiaries at the dates indicated and the
statement of operations, shareholders’ equity and cash flows
of the Company and its consolidated subsidiaries for the periods
specified all prepared in conformity with generally accepted
accounting principles (“GAAP”) (subject, in the case of
interim statements, to normal year-end audit adjustments); and the
Company has no material contingent obligation that is not disclosed
in such financial statements or in the Registration Statement,
Prospectus or Disclosure Package. The supporting schedules, if any,
included in the Registration Statement present fairly in accordance
with GAAP the information required to be stated therein. The
summary financial information, the capitalization table and the
ratio of earnings to fixed charges included in the Prospectus and
Disclosure Package present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement.
9. No Material Adverse Change in
Business . Since the respective dates as of which information
is given in the Registration Statement, the Prospectus and the
Disclosure Package, except as otherwise stated therein,
(A) there has been no material adverse change in the
consolidated financial position, shareholders’ equity,
results of operations or business of the Company and its
subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business (a “Material Adverse
Effect”), (B) there have been no transactions entered
into by the Company or any of its subsidiaries, other than those in
the ordinary course of business, which are material with respect to
the Company and its subsidiaries considered as one enterprise, and
(C) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its share
capital.
10. Good Standing of the Company
and the Guarantor . The Company has been duly organized and is
validly existing as an exempted company in good standing under the
laws of Bermuda and has corporate power and authority to own, lease
and operate its properties and to conduct its business as described
in the Prospectus and the Disclosure Package and to enter into and
perform its obligations under this Agreement, the Indenture and the
Notes; the Guarantor has been duly organized and is validly
existing as a corporation in good standing under the laws of the
State of Delaware and has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and the Disclosure Package and to enter
into and perform its obligations under this Agreement, the
Indenture and the Guarantees; and the Company 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 where the failure so to qualify or to
be in good standing would not result in a Material Adverse Effect;
the Guarantor 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, expect where the failure to so qualify or to be in good
standing would not result in a material adverse change in the
consolidated financial position, shareholders’ equity,
results of operations or business of the Guarantor and its
subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business.
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11. Good Standing of
Subsidiaries . Each of the Company’s subsidiaries (as
defined in Rule 405 of the 1933 Act Regulations) have been
duly incorporated or formed and are validly existing as
corporations, limited liability companies, limited partnerships or
other forms of entities, as the case may be, in good standing under
the laws of their respective jurisdictions of incorporation or
formation, have the requisite power and authority to own their
respective properties and conduct their respective businesses, are
duly qualified to do business and are in good standing as foreign
corporations, limited liability companies, limited partnerships or
other forms of entities in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, except to the
extent that the failure to be so qualified or be in good standing
would not have a Material Adverse Effect.
12. Capitalization . The
Company has an authorized capitalization as set forth in the
Disclosure Package and the Prospectus, and all of the issued shares
of the Company, have been duly and validly authorized and issued,
are fully paid and non-assessable and conform to the description
thereof contained in the Disclosure Package and the Prospectus; and
all of the issued shares, share capital or other equity interests
of each subsidiary of the Company, have been duly and validly
authorized and issued and are fully paid and non-assessable and
(except for directors’ qualifying shares) are owned directly
or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
13. Authorization of Agreement
. This Agreement has been duly authorized, executed and delivered
by the Company and the Guarantor.
14. Authorization of the
Indenture . The Indenture has been duly authorized by the
Company and the Guarantor, duly qualified under the 1939 Act and
duly executed and delivered by the Company and the Guarantor. The
Indenture constitutes a valid and binding agreement of the Company
and the Guarantor, enforceable against the Company and the
Guarantor in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law).
15. Authorization of the
Securities . The Securities have been duly authorized and, at
the Closing Time, will have been duly executed by the Company and
the Guarantor, as the case may be, for issuance and sale pursuant
to this Agreement. The Securities, when authenticated, issued and
delivered in the manner provided for in the Indenture and delivered
against payment of the purchase price therefor as provided in this
Agreement, will have been duly executed, authenticated, issued and
delivered and will constitute valid and binding obligations of the
Company and the Guarantor, enforceable against the Company and the
Guarantor, as the case may be, in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors’ rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), and will be in the form
contemplated by, and entitled to the benefits of, the
Indenture.
16. Description of the Securities
and the Indenture . The Securities and the Indenture will
conform in all material respects to the respective statements
relating thereto contained in the Prospectus and the Disclosure
Package and will be in substantially the respective forms filed or
incorporated by reference, as the case may be, as exhibits to the
Registration Statement.
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17. Absence of Defaults and
Conflicts . Neither the Company nor any of its subsidiaries is
(i) in violation of its charter, memorandum of association or
bye-laws or similar governing document, as applicable, (ii) in
default, and no event has occurred which, with notice or lapse of
time or both, would constitute such a default, in the due
performance or observance of any term, obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, lease or other
agreement or instrument to which it is a party or by which it is
bound or which any of its properties or assets may be subject
(collectively, “Agreements and Instruments”) or
(iii) in violation of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets
may be subject, except with respect to (ii) or (iii), for any
such violations or defaults that would not be reasonably likely,
singly or in the aggregate, to have a Material Adverse Effect; and
the execution, delivery and performance of this Agreement, the
Indenture and the Securities and the consummation of the
transactions contemplated herein and in the Registration Statement
(including the issuance and sale of the Securities and the use of
the proceeds from the sale of the Securities as described in the
Disclosure Package and the Prospectus under the caption “Use
of Proceeds”) and compliance by the Company and the Guarantor
with their respective obligations hereunder and under the Indenture
and the Securities have been duly authorized by all necessary
corporate action and do not and will not, whether with or without
the giving of notice or passage of time or both, (i) conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default or Repayment Event (as
defined below) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to, the Agreements and
Instruments, (ii) result in any violation of the provisions of
the charter, memorandum of association or bye-laws (or similar
governing document) of the Company or any of its subsidiaries or
(iii) result in any violation of any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any subsidiary or
any of their assets, properties or operations; except for such
conflict, breach, violation or default which would, for purposes of
clauses (i) and (iii) above, either individually or in
the aggregate, not have a Material Adverse Effect. As used herein,
a “Repayment Event” means any event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by the Company or any
subsidiary.
18. Absence of Labor Dispute .
No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company or the
Guarantor, is imminent, which would reasonably be expected to have
a Material Adverse Effect; and there are no significant unfair
labor practice complaints pending against the Company or any of its
subsidiaries or, to the knowledge of the Company or the Guarantor,
threatened against any of them.
19. Absence of Proceedings .
There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the Registration
Statement or the Prospectus (other than as disclosed therein), or
which would reasonably be expected to result in a Material Adverse
Effect, or which would reasonably be expected to materially and
adversely affect the consummation of the transactions contemplated
in this Agreement or the performance by the Company and the
Guarantor of their respective obligations hereunder; the aggregate
of all pending legal or governmental proceedings to which the
Company or any subsidiary is a party or of which any of their
respective property or assets is the subject which are not
described in the Registration Statement, the Prospectus or the
Disclosure Package, including ordinary routine
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litigation
incidental to the business, would not reasonably be expected to
result in a Material Adverse Effect.
20. Accuracy of Exhibits .
There are no contracts or documents which are required to be
described in the Registration Statement, the Prospectus or the
documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as
required.
21. Possession of Intellectual
Property . The Company and its subsidiaries own or possess
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service mark registrations, copyrights and licenses necessary for
the conduct of their respective businesses and have no reason to
believe that the conduct of their respective businesses will
conflict with, and have not received any notice of any claim of
conflict with, any such rights of others, except where such
conflict could not reasonably be expected to have a Material
Adverse Effect.
22. Absence of Manipulation .
None of the Company, the Guarantor or any of their affiliates has
taken, nor will the Company, the Guarantor or any of their
affiliates take, directly or indirectly, any action which is
designed to or which has constituted or which would be expected to
cause or result in stabilization or manipulation of the price of
any security of the Company or the Guarantor to facilitate the sale
or resale of the Securities.
23. Absence of Further
Requirements . No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of,
any court or governmental authority or agency is necessary or
required for the performance by the Company and the Guarantor of
their respective obligations hereunder, in connection with the
offering, issuance or sale of the Securities hereunder or the
consummation of the transactions contemplated by this Agreement or
for the due execution, delivery or performance of the Indenture by
the Company and the Guarantor, except (A) as may be required
under the 1933 Act or the 1933 Act Regulations or state or
securities laws and the Companies Act 1981 of Bermuda and except
for the qualification of the Indenture under the 1939 Act or
(B) as have already been made, obtained or rendered, as
applicable, and except where the failure to so make, obtain or
render, singly or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect.
24. Possession of Licenses and
Permits . The Company and its subsidiaries possess such
permits, licenses, approvals, consents and other authorizations
(collectively, “Governmental Licenses”) issued by the
appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them,
except where the failure so to possess would not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect; the Company and its subsidiaries are in compliance with the
terms and conditions of all such Governmental Licenses, except
where the failure so to comply would not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not, singly or in the aggregate, reasonably
be expected to result in a Material Adverse Effect; and neither the
Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result
in a Material Adverse Effect.
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25. Title to Property . The
Company and its subsidiaries have good and indefeasible title in
fee simple to all real property owned by the Company and its
subsidiaries and good and valid title to all other properties owned
by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of
any kind except such as (a) are described in the Disclosure
Package and the Prospectus or (b) would not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect; and all of the leases and subleases material to the
business of the Company and its subsidiaries, considered as one
enterprise, and under which the Company or any of its subsidiaries
holds properties described in the Disclosure Package and the
Prospectus, are in full force and effect, and neither the Company
nor any subsidiary has any notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of the
Company or any subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the
Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or
sublease.
26. Investment Company Act .
Neither the Company nor the Guarantor is, and upon the issuance and
sale of the Securities as herein contemplated and the application
of the net proceeds therefrom as described in the Disclosure
Package and the Prospectus, neither the Company nor the Guarantor
will be, an “investment company” or an entity
“controlled” by an “investment company”, as
such terms are defined in the U.S. Investment Company Act of 1940,
as amended (the “1940 Act”).
27. Environmental Laws .
Except as described in the Registration Statement, the Prospectus
and the Disclosure Package and except as would not, singly or in
the aggregate, result in a Material Adverse Effect,
(A) neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign statute, law,
rule, regulation, ordinance, code, policy or rule of common law or
any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment,
relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products, asbestos-containing materials or
mold (collectively, “Hazardous Materials”) or to the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials
(collectively, “Environmental Laws”), (B) the
Company and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are
each in compliance with their requirements, (C) there are no
pending or, to the knowledge of the Company, threatened
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries
and (D) there are no events or circumstances that would
reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the
Company or any of its subsidiaries relating to Hazardous Materials
or any Environmental Laws.
28. Subsequent Events .
Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included
in the Registration Statement, the Prospectus and the Disclosure
Package, 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 Registration Statement, the Prospectus or the
Disclosure Package;
9
and, since such
date, there has not been any material change in the share capital
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 the condition, financial or otherwise,
or in the earnings or business of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Registration
Statement, the Prospectus or the Disclosure Package.
29. Insurance . The Company
and each of its subsidiaries carry, or are covered by, insurance in
such amounts and covering such risks as they reasonably deem
sufficient for the conduct of their respective businesses and the
value of their respective properties, and neither the Company nor
any subsidiary has received notice of cancellation or non-renewal
of such insurance.
30. Books and Records . The
Company and each of its subsidiaries (i) makes and keeps books
and records, which accurately reflect transactions and dispositions
of its assets, (ii) maintains internal accounting controls
which provide reasonable assurance that (A) transactions are
executed in accordance with management’s general and specific
authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain
accountability for its assets, (C) access to its assets is
permitted only in accordance with management’s general and
specific authorization and (D) the recorded accountability for its
assets is compared with existing assets at reasonable
intervals.
31. Foreign Corrupt Practices
Act . Except as would not reasonably be expected to
(i) result in a Material Adverse Effect or
(ii) materially and adversely affect the consummation of the
transactions contemplated in this Agreement or the performance by
the Company and the Guarantor of their respective obligations
hereunder, neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or shareholder acting on behalf
of the Company or any of its subsidiaries, is aware of or has used
any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity; made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate
funds; violated or is in violation of any provision of the U.S.
Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder (collectively, the “FCPA”)
or similar law, ordinance, rule or regulation applicable to the
Company and its subsidiaries; or made any unlawful bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.
Except as would not reasonably be expected to (i) result in a
Material Adverse Effect or (ii) materially and adversely
affect the consummation of the transactions contemplated in this
Agreement or the performance by the Company and the Guarantor of
their respective obligations hereunder, the Company, its
subsidiaries and, to the knowledge of the Company, its affiliates,
have conducted their business in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure,
and which are reasonably expected to continue to ensure, continued
compliance therewith.
32. No Conflict with Money
Laundering Laws . The operations of the Company and its
subsidiaries are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements
of the U.S. Currency and Foreign Transactions Reporting Act of
1970, as amended, the money laundering statutes of all applicable
jurisdictions, the rules and regulations thereunder and any related
or similar rules, regulations or guidelines issued, administered or
enforced by any governmental agency (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or
before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the best
knowledge of the Company, threatened.
10
33. No Conflict with OFAC Laws
. Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is currently
subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department
(“OFAC”); and the Company will not directly or
indirectly use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds, to any subsidiary, joint
venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC, in each case other than in
compliance with all applicable OFAC rules, regulations and
procedures.
34. Borrowing Regulations .
The Company and its subsidiaries have not taken, and will not take,
any action that might cause this Agreement or the issuance or sale
of the Securities to violate Regulation T (12 C.F.R.
Part 220), Regulation U (12 C.F.R. Part 221) or
Regulation X (12 C.F.R. Part 224) of the Board of
Governors of the Federal Reserve System.
35. Disclosure Controls and
Procedures . (i) The Company has established and maintains
disclosure controls and procedures (as such term is defined in
Rules 13a-15(e) and 15d-15(e) under the 1934 Act);
(ii) such disclosure controls and procedures are designed to
ensure that information required to be disclosed by the Company in
the reports it files or submits under the 1934 Act is accumulated
and communicated to the Company’s management, including its
principal executive officer and its principal financial officer, as
appropriate, to allow timely decisions regarding required
disclosure; and (iii) such disclosure controls and procedures
are effective in all material respects to perform the functions for
which they were established. Since the date of the most recent
evaluation of such disclosure controls and procedures, there have
been no significant changes in internal controls or in other
factors that could significantly affect internal controls,
including any corrective actions with regard to significant
deficiencies and material weaknesses.
36. Internal Controls . Except
as disclosed in the Registration Statement, the Disclosure Package
and the Prospectus, since December 31, 2007, there has not
been (i) any significant deficiency in the design or operation
of internal controls which could adversely affect the
Company’s or the Guarantor’s ability to record,
process, summarize and report financial data nor any material
weaknesses in internal controls; or (ii) any fraud, whether or
not material, that involves management or other employees who have
a significant role in the Company’s or the Guarantor’s
internal controls. Except as disclosed in the Registration
Statement, the Disclosure Package and the Prospectus, since
December 31, 2007, there have been no significant changes in
internal controls or in other factors that could significantly
affect internal controls, including any corrective actions with
regard to significant deficiencies and material weaknesses. The
Company and the Guarantor have designed and maintain internal
control over financial reporting (as such term is defined in
Rules 13a-15(f) and Rules 15d-15(f) under the 1934 Act,
referred to herein as “Reporting Controls”), and the
Reporting Controls are (i) designed to, and sufficient to,
provide reasonable assurance (A) that transactions are
executed in accordance with management’s general or specific
authorizations; (B) that transactions are recorded as
necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (C) that access to assets is
permitted only in accordance with management’s general or
specific authorization; (D) that 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 (E) regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles and include, without limitation, those processes
specifically referred to in
11
Rule 13a-15(f) and Rule 15d-15(f) and (ii) to the
knowledge of the Company and the Guarantor, effective to perform
the functions for which they are maintained.
(b) Officer’s
Certificates . Any certificate signed by any officer of the
Company or the Guarantor delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and
warranty by the Company or the Guarantor, as the case may be, to
each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to
Underwriters; Closing .
(a) Securities .
1. On the basis of the
representations, warranties and agreements herein contained and
subject to the terms and conditions herein set forth, the Company
and the Guarantor agree to sell to each Underwriter, severally and
not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the Company and the Guarantor, at a price
equal to 99.194% of the principal amount thereof, the aggregate
principal amount of the 5.15% Senior Notes due 2013 set forth in
Schedule A opposite the name of such Underwriter, plus any
additional principal amount of Securities which such Underwriter
may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
2. On the basis of the
representations, warranties and agreements herein contained and
subject to the terms and conditions herein set forth, the Company
and the Guarantor agree to sell to each Underwriter, severally and
not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the Company and the Guarantor, at a price
equal to 98.812% of the principal amount thereof, the aggregate
principal amount of the 6.00% Senior Notes due 2018 set forth in
Schedule A opposite the name of such Underwriter, plus any
additional principal amount of Securities which such Underwriter
may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
3. On the basis of the
representations, warranties and agreements herein contained and
subject to the terms and conditions herein set forth, the Company
and the Guarantor agree to sell to each Underwriter, severally and
not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the Company and the Guarantor, at a price
equal to 98.780% of the principal amount thereof, the aggregate
principal amount of the 7.00% Senior Notes due 2038 set forth in
Schedule A opposite the name of such Underwriter, plus any
additional principal amount of Securities which such Underwriter
may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Payment . Payment of
the purchase price for, and delivery of certificates for, the
Securities shall be made at the offices of Andrews Kurth LLP,
Houston, Texas 77002, or at such other place as shall be agreed
upon by the Representatives and the Company, at 9:00 A.M.
(Eastern time) on the third business day after the date hereof
(unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business
days after such date as shall be agreed upon by the Representatives
and the Company (such time and date of payment and delivery being
herein called “Closing Time”).
Payment shall be made to the Company
by wire transfer of immediately available funds to a bank account
designated by the Company, against delivery to the Representatives
for the respective accounts of the Underwriters of certificates for
the Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representatives, for its account, to
accept delivery of, receipt for, and
12
make
payment of the purchase price for, the Securities which it has
agreed to purchase. The Lead Representative, individually and not
as representative of the Underwriters, may (but shall not be
obligated to) make payment of the purchase price for the Securities
to be purchased by any Underwriter whose funds have not been
received by the Closing Time, but such payment shall not relieve
such Underwriter from its obligations hereunder. Delivery of the
Securities shall be made through the facilities of DTC.
(c) Denominations;
Registration . Certificates for the Securities shall be in such
denominations ($2,000 or integral multiples of $1,000 in excess of
$2,000) and registered in such names as the Representatives may
request in writing at least one full business day before the
Closing Time. The Securities will be made available for examination
and packaging by the Representatives in The City of New York not
later than 10:00 A.M. (Eastern time) on the business day prior
to the Closing Time.
SECTION 3. Covenants of the
Company and the Guarantor . The Company and the Guarantor
jointly and severally covenant with each Underwriter as
follows:
(a) Compliance with
Securities Regulations and Commission Requests . The Company
and the Guarantor, subject to Section 3(b), will comply with
the requirements of Rule 430A and will notify the
Representatives immediately, and confirm the notice in writing,
(i) when any post-effective amendment to the Registration
Statement shall become effective, or when any supplement to the
Prospectus, any amended Prospectus, or any Issuer Free Writing
Prospectus or supplement or amendment thereto shall have been
filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or
supplement to the preliminary prospectus, the Prospectus or any
Issuer Free Writing Prospectus or any document incorporated by
reference therein or for additional information, and (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, of
the Prospectus or of any Issuer Free Writing Prospectus, or of the
suspension of the qualification of the Securities for offering or
sale in any jurisdiction, or of the initiation or threatening of
any proceedings for any of such purposes. The Company and the
Guarantor will promptly effect the filings necessary pursuant to
Rule 424(b) and Rule 433 and will take such steps as they deem
necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) and the Final Term Sheet
transmitted for filing under Rule 433 were received for filing
by the Commission and, in the event that any such document was not,
they will promptly file such document. The Company and the
Guarantor will use their reasonable best efforts to prevent the
issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof as soon as possible. The Company shall
pay the required Commission filing fees relating to the Securities
within the time period required by Rule 456(b)(i) of the 1933
Act Regulations without regard to the proviso therein and otherwise
in accordance with Rules 456(b) and 457(r) of the 1933 Act
Regulations and, if applicable, shall have updated the
“Calculation of Registration Fee” table in accordance
with Rule 456(b)(1)(ii) either in a post-effective amendment
to the Registration Statement or on the cover page of a prospectus
filed pursuant to Rule 424(b).
(b) Filing of Amendments
. The Company and the Guarantor will give the Representatives
notice of their intention to file or prepare any amendment to the
Registration Statement (including any filing under
Rule 462(b)) or any amendment, supplement or revision to any
of the prospectus included in the Registration Statement at the
time it became effective, the preliminary prospectus, the
Prospectus or any Issuer Free Writing Prospectus, whether pursuant
to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case
may be, and will not file or use any such document without the
consent of the Representatives, which consent shall not be
unreasonably withheld.
13
(c) Final Term Sheet .
The Company and the Guarantor will file, pursuant to Rule 433(d)
under the 1933 Act and within the time required by such rule, the
final term sheet containing only the description of the Securities
in the form attached hereto as Schedule D (the “Final
Term Sheet”).
(d) Permitted Free Writing
Prospectuses . Each of the Company and the Guarantor represents
that it has not made, and agrees that, unless it obtains the prior
written consent of the Representatives, it will not make, any offer
relating to the Securities that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a “free
writing prospectus” (as defined in Rule 405 of the 1933
Act) required to be filed by the Company or the Guarantor with the
Commission or retained by the Company under Rule 433 of the
1933 Act; provided that the prior written consent of the
Representatives hereto shall be deemed to have been given in
respect of the Issuer Free Writing Prospectuses identified on
Schedule B hereto. Any such free writing prospectus consented
to by the Representatives is herein referred to as a
“Permitted Free Writing Prospectus”. Each of the
Company and the Guarantor agrees that (i) it has treated and
will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, and (ii) has
complied and will comply, as the case may be, with the requirements
of Rules 164 and 433 of the 1933 Act applicable to any
Permitted Free Writing Prospectus, including in respect of timely
filing with the Commission, legending and record keeping. The
Company and the Guarantor consent to the use by any Underwriter of
a free writing prospectus that (a) is not an “issuer
free writing prospectus” as defined in Rule 433, and
(b) contains only (i) information describing the
preliminary terms of the Securities or their offering,
(ii) information permitted by Rule 134 under the 1933 Act
or (iii) information that describes the final terms of the
Securities or their offering and that is included in the Final Term
Sheet.
(e) Delivery of Registration
Statements . The Company and the Guarantor have furnished or
will deliver to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the
Representatives, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The copies
of the Registration Statement and each amendment thereto furnished
to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(f) Delivery of
Prospectuses . The Company and the Guarantor have delivered to
each Underwriter, without charge, as many copies of each
preliminary prospectus and Issuer Free Writing Prospectus as such
Underwriter reasonably requested, and the Company and the Guarantor
hereby consent to the use of such copies for purposes permitted by
the 1933 Act. The Company and the Guarantor will furnish to each
Underwriter, without charge, during the period when the Prospectus
is required to be delivered under the 1933 Act, such number of
copies of the Prospectus (as amended or supplemented) and any
Issuer Free Writing Prospectuses as such Underwriter may reasonably
request. The preliminary prospectus, preliminary prospectus
supplement, Prospectus, and each Issuer Free Writing Prospectus and
any amendments or supplements to such documents furnished to the
Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(g) Continued Compliance
with Securities Laws . The Company and the Guarantor will
comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations and the 1939 Act and the 1939 Act
Regulations so as to permit the completion of the distribution of
the Securities as contemplated in this Agreement and in the
Disclosure Package and the Prospectus. From the Applicable Time
until such time as it is determined that a prospectus is no longer
required by the 1933
14
Act to
be delivered in connection with the sale of the Securities, any
event shall occur or condition shall exist as a result of which it
is necessary, in the opinion of counsel for the Underwriters or for
the Company or the Guarantor, to amend the Registration Statement
or amend or supplement the Prospectus or the Disclosure Package in
order that the Prospectus or the Disclosure Package will not
include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel or pursuant to notice from the Commission,
at any such time to amend the Registration Statement, file a new
registration statement or amend or supplement the Prospectus or the
Disclosure Package in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, the Company and the Guarantor
will promptly prepare and file with the Commission, subject to
Section 3(b), such new registration statement, amendment or
supplement as may be necessary to correct such statement or
omission or to make the Registration Statement, the Prospectus or
the Disclosure Package comply with such requirements, the Company
and the Guarantor will furnish to the Underwriters such number of
copies of such new registration statement, amendment or supplement
as the Underwriters may reasonably request and use its commercially
reasonable efforts to cause such new registration statement or
amendment to be declared effective as soon as practicable. In any
such case, the Company will promptly notify the Representatives of
such filings and effectiveness.
(h) Blue Sky
Qualifications . The Company and the Guarantor will use their
best efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions as the Representatives
may designate and to maintain such qualifications in effect for a
period of not less than one year from the later of the effective
date of the Registration Statement and any Rule 462(b) Registration
Statement; provided, however, that the Company and the Guarantor
shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or
so subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. The Company
and the Guarantor will also supply the Underwriters with such
information as is necessary for the determination of the legality
of the Securities for investment under the laws of such
jurisdictions as the Underwriters may request.
(i) Rule 158 . The
Company will timely file such reports pursuant to the 1934 Act as
are necessary in order to make generally available to its
securityholders an earnings statement for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(j) Use of Proceeds .
The Company will use the net proceeds received by it from the sale
of the Securities in the manner specified in the Prospectus under
“Use of Proceeds”.
(k) Reporting
Requirements . The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will
file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the
1934 Act and the 1934 Act Regulations.
(l) Rating of Securities
. The Company and the Guarantor will take all reasonable action
necessary to enable Standard & Poor’s, a division of The
McGraw-Hill Companies, Inc. (“S&P”), and
Moody’s Investors Service Inc. (“Moody’s”)
to provide their respective credit ratings of the Securities.
(m) DTC . The Company
and the Guarantor will cooperate with the Representatives and use
commercially reasonable efforts to permit the Securities to be
eligible for clearance and settlement through the facilities of
DTC.
15
(n) Renewal of Registration
Statement. If by the third anniversary (the “Renewal
Deadline”) of the initial effective date of the Registration
Statement, any of the Securities remain unsold by the Underwriters,
the Company will, upon reasonable written request from the
Underwriters, promptly file, (i) if it has not already done so
and is eligible to do so, a new automatic shelf registration
statement relating to the Securities, in a form reasonably
satisfactory to the Representatives or (ii) if it has not
already done so but is no longer eligible to file an
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