Exhibit 1.1
EXECUTION COPY
PNC Funding Corp,
Issuer
and
The PNC Financial Services Group,
Inc., Guarantor
Underwriting
Agreement
New York, New York
September 16,
2009
To the Representatives
named in Schedule I
hereto of the
Underwriters named in
Schedule II hereto
Dear Ladies and
Gentlemen:
PNC Funding Corp, a Pennsylvania
corporation (the “ Company ”), proposes to issue
and sell to the underwriters named in Schedule II hereto (the
“ Underwriters ”), for whom you are acting as
representatives (the “ Representatives ”), the
principal amount of its securities identified in Schedule I hereto
(together with the guarantees mentioned below, the “
Securities ”) to be guaranteed by The PNC Financial
Services Group, Inc., a Pennsylvania corporation (the “
Guarantor ”), and to be issued under an indenture
dated as of December 1, 1991, among the Company, the Guarantor
and The Bank of New York Mellon (formerly know as The Bank of New
York, successor to JPMorgan Chase Bank, N.A., which was formerly
known as The Chase Manhattan Bank, which was formerly known as
Chemical Bank, successor by merger to Manufacturers Hanover Trust
Company), as trustee (the “ Trustee ”), as
amended by a Supplemental Indenture dated as of February 15,
1993, among the Company, the Guarantor and the Trustee, as further
amended by a Second Supplemental Indenture dated as of
February 15, 2000, as further amended by a Third Supplemental
Indenture dated as of December 19, 2008, as further amended by
a Fourth Supplemental Indenture dated as of December 19, 2008
and as further amended by a Fifth Supplement Indenture dated as of
March 31, 2009 (as amended, the “ Indenture
”). If the firm or firms listed in Schedule II hereto include
only the firm or firms listed in Schedule I hereto, then the terms
“Underwriters” and “Representatives,” as
used herein, shall each be deemed to refer to such firm or
firms.
Section 1. Representations
and Warranties . The Company and the Guarantor represent and
warrant to, and agree with, each Underwriter as set forth below in
this Section 1. Certain terms used in this Section 1 are
defined in paragraph (e) hereof.
(a) The Company and the Guarantor
meet the requirements for the use of Form S-3 under the
Securities Act of 1933 (the “ Act ”) and have
filed with the
Securities and Exchange Commission
(the “ Commission ”) a registration statement
(the file number of which is set forth in Schedule I hereto),
on such Form, including a basic prospectus, for registration under
the Act of the offering and sale of the Securities. The Company and
the Guarantor may have filed one or more amendments thereto, and
have prepared a Preliminary Final Prospectus, each of which has
previously been furnished to you. Such registration statement, as
so amended, has become effective. The offering of the Securities is
a Delayed Offering (as defined below) and, although the Basic
Prospectus may not include all information with respect to the
Securities and the offering thereof required by the Act and the
rules thereunder to be included in the Final Prospectus, the Basic
Prospectus includes all such information required by the Act and
the rules thereunder to be included therein as of the Effective
Date. The Company and the Guarantor will file a term sheet pursuant
to Rule 433 disclosing the pricing terms of the offering. The
Company and the Guarantor will next file with the Commission
pursuant to Rules 415 and 424(b)(2) or (5) a final supplement
to the Basic Prospectus relating to the Securities and the offering
thereof. As filed, such final prospectus supplement shall include
all required information with respect to the Securities and the
offering thereof and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and
other changes (beyond that contained in the Basic Prospectus and
the Pricing Disclosure Package) as the Company has advised you,
prior to the Execution Time, will be included or made
therein.
(b) (i) At the time of filing of the
Registration Statement, (ii) at the time of the most recent
amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Sections 13 or 15(d) of the Securities Exchange Act of 1934 (the
“ Exchange Act ”) or form of prospectus) and
(iii) at the time the Company, the Guarantor or any person
acting on their behalf (within the meaning, for this clause only,
of Rule 163(c)) made any offer relating to the Securities in
reliance on the exemption in Rule 163, the Company and Guarantor
were each a “well-known seasoned issuer” as defined in
Rule 405; and 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)) of the Securities, the Company was not and is not an
“ineligible issuer” as defined in Rule 405.
(c) Neither the Company nor the
Guarantor have sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Basic Prospectus, as amended and supplemented immediately prior to
the Applicable Time, any material loss or interference with their
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 Basic Prospectus, as amended and
supplemented immediately prior to the Applicable Time; and, since
the
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respective dates as of which
information is given in the Registration Statement and the Basic
Prospectus, as amended and supplemented immediately prior to the
Applicable Time, there has not been any material change in the
capital stock or long term debt of the Company or the Guarantor or
any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders’ equity
or results of operations of the Company or the Guarantor, otherwise
than as set forth or contemplated in the Basic Prospectus, as
amended and supplemented immediately prior to the Applicable
Time.
(d) On the Effective Date, the
Registration Statement did, at the Applicable Time and on the
Closing Date, the Pricing Disclosure Package did and will, and when
the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date, the Final Prospectus
(and any supplement thereto) will, comply in all material respects
with the applicable requirements of the Act and the Exchange Act
and the respective rules thereunder; on the Effective Date, the
Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; at the Applicable Time and on
the Closing Date, the Pricing Disclosure Package did not or 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, in light of the circumstances under which they were made,
not misleading; and each Issuer Free Writing Prospectus listed on
Schedule III hereto does not conflict with the information
contained in the Registration Statement, the Pricing Disclosure
Package or the Final Prospectus and each such Issuer Free Writing
Prospectus, as supplemented by and taken together with 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;
and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date
of any filing pursuant to Rule 424(b) and on the Closing Date,
the Final Prospectus (together with any supplement thereto) 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, in the light of the circumstances under which they were
made, not misleading; provided , however , that the
Company and the Guarantor make no representations or warranties as
to (i) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of the Trustee or (ii) the
information contained in the Registration Statement, the Pricing
Disclosure Package or the Final Prospectus (or any supplement
thereto), in reliance upon and in conformity with information
furnished in writing to the Company or the Guarantor by or on
behalf of any Underwriter through the Representatives specifically
for use in connection with the preparation of the Registration
Statement or the Final Prospectus (or any supplement
thereto).
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(e) The terms that follow, when used
in this Agreement, shall have the meanings indicated. The term
“the Effective Date ” shall mean each date that
the Registration Statement and any post effective amendment or
amendments thereto became or become effective. “ Execution
Time ” shall mean the date and time that this Agreement
is executed and delivered by the parties hereto. “
Applicable Time ” shall mean the time and date set
forth on Schedule I hereto. “ Basic Prospectus ”
shall mean the prospectus referred to in paragraph (a) above
contained in the Registration Statement at the Effective Date.
“ Preliminary Final Prospectus ” shall mean any
preliminary prospectus supplement to the Basic Prospectus which
describes the Securities and the offering thereof and is used prior
to filing of the Final Prospectus. “ Pricing Disclosure
Package ” shall mean the Basic Prospectus (as amended and
supplemented immediately prior to the Applicable Time) and any
Preliminary Final Prospectus as supplemented by the final term
sheet prepared and filed pursuant to Section 4(a) hereof and
by the other Issuer Free Writing Prospectuses listed on Schedule
III hereto and specified to be part of the Pricing Disclosure
Package. “ Final Prospectus ” shall mean the
prospectus supplement relating to the Securities that is first
filed pursuant to Rule 424(b) after the Execution Time,
together with the Basic Prospectus, included in the Registration
Statement at the Effective Date. “ Issuer Free Writing
Prospectus ” shall mean any “issuer free writing
prospectus” as defined in Rule 433. “ Registration
Statement ” shall mean the registration statement
referred to in paragraph (a) above, including incorporated
documents, exhibits and financial statements, as amended at the
Execution Time (or, if not effective at the Execution Time, in the
form in which it shall become effective) and, in the event any post
effective amendment thereto becomes effective prior to the Closing
Date (as hereinafter defined), shall also mean such registration
statement as so amended. Such term shall include any Rule 430
Information deemed to be included therein at the Effective Date as
provided by Rule 430A, Rule 430B or Rule 430C.
“ Rule 405 ,” “ Rule 415
,” “ Rule 424 ,” “
Rule 430A ”, “ Rule 430B
,” “ Rule 430C ,” “ Rule
433 ” and “ Regulation S-K ”
refer to such rules or regulations under the Act. “
Rule 430 Information ” means information with
respect to the Securities and the offering thereof permitted to be
omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A, Rule 430B or Rule 430C. Any
reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus, the Pricing
Disclosure Package or the Final Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under
the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus, the Pricing Disclosure Package or
the Final Prospectus, as the case may be, and any reference herein
to the terms “amend,” “amendment” or
“supplement” with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the Effective
Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case
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may be, deemed to be incorporated
therein by reference. A “ Delayed Offering ”
shall mean an offering of securities pursuant to Rule 415 which
does not commence promptly after the effective date of a
registration statement, with the result that only information
required pursuant to Rule 415 needs to be included in such
registration statement at the effective date thereof with respect
to the securities so offered.
(f) The financial statements
(including the related notes thereto) of the Guarantor and its
consolidated subsidiaries included or incorporated by reference in
the Registration Statement, the Pricing Disclosure Package and the
Final Prospectus comply in all material respects with the
applicable requirements of the Act and the Exchange Act, as
applicable, and present fairly the financial position of the
Guarantor and its consolidated subsidiaries, as of the dates
indicated and the results of operations and the changes in cash
flow for the periods specified; such financial statements have been
prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis
throughout the periods covered thereby, and any supporting
schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated
therein; the other financial information of the Guarantor and its
consolidated subsidiaries included or incorporated by reference in
the Registration Statement, the General Disclosure Package and the
Final Prospectus has been derived from the accounting records of
the Guarantor and its consolidated subsidiaries and presents fairly
the information shown thereby; and the pro forma financial
information and the related notes thereto included or incorporated
by reference in the Registration Statement, the Pricing Disclosure
Package and the Final Prospectus have been prepared in accordance
with the applicable requirements of the Act and the Exchange Act,
as applicable, and the assumptions underlying such pro forma
financial information are reasonable and are set forth in the
Registration Statement, the Pricing Disclosure Package and the
Final Prospectus.
(g) The financial statements
(including the related notes thereto) of the Guarantor included or
incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Final Prospectus for the period
as of, and for the year ended, December 31, 2006 and all prior
periods were audited by Deloitte and Touche LLP, who was an
independent registered public accounting firm within the meaning of
the Act, the Exchange Act and the Public Company Accounting
Oversight Board (United States) with respect to the Guarantor
throughout such periods of audit work on the financial statements,
and all other financial data for such periods that is included or
incorporated by reference in the Registration Statement, the
Pricing Disclosure Package and the Final Prospectus for such
periods have been derived from such audited financial
statements.
(h) The financial statements
(including the related notes thereto) of National City Corporation
(“ National City ”) and its consolidated
subsidiaries included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the
Final Prospectus comply in all material respects with
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the applicable requirements of the
Act and the Exchange Act, as applicable, and present fairly the
financial position of National City and its consolidated
subsidiaries, as of the dates indicated and the results of
operations and the changes in cash flow for the periods specified;
such financial statements have been prepared in conformity with
generally accepted accounting principles in the United States
applied on a consistent basis throughout the periods covered
thereby, and any supporting schedules included or incorporated by
reference in the Registration Statement present fairly the
information required to be stated therein; the other financial
information of National City and its consolidated subsidiaries
included or incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Final Prospectus
has been derived from the accounting records of National City and
its consolidated subsidiaries and presents fairly the information
shown thereby; and the pro forma financial information and the
related notes thereto included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the
Final Prospectus have been prepared in accordance with the
applicable requirements of the Act and the Exchange Act, as
applicable, and the assumptions underlying such pro forma financial
information are reasonable and are set forth in the Registration
Statement, the Pricing Disclosure Package and the Final
Prospectus.
(i) PricewaterhouseCoopers LLP, who
have certified certain financial statements of the Guarantor and
its subsidiaries, are an independent registered public accounting
firm with respect to the Guarantor and its subsidiaries within the
applicable rules and regulations adopted by the Commission and the
Public Company Accounting Oversight Board (United States) and as
required by the Securities Act.
(j) Ernst & Young LLP, who
have certified certain financial statements of National City and
its subsidiaries, were an independent registered public accounting
firm with respect to National City and its subsidiaries within the
applicable rules and regulations adopted by the Commission and the
Public Company Accounting Oversight Board (United States) and as
required by the Securities Act for periods prior to the acquisition
of National City by PNC, including for the three years in the
period ended December 31, 2007 and the nine-month period ended
September 30, 2008.
(k) Neither the Guarantor nor the
Company is, and after the issuance and sale of the Securities and
application of the net proceeds from such sale as described in the
Registration Statement, the Pricing Disclosure Package and the
Final Prospectus under the caption “Use of Proceeds”
and after giving effect to the transactions described therein will
be, an “investment company” or a company
“controlled by” an “investment company”
within the meaning of the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder (the “
Investment Company Act ”).
(l) Neither the Guarantor nor any of
its subsidiaries nor, to the knowledge of the Guarantor, any
director, officer, agent, employee or affiliate of
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the Guarantor or any of its
subsidiaries is aware of or has taken any action, directly or
indirectly, that would result in a violation by such persons of the
Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder (the “ FCPA ”),
including, without limitation, making use of the mails or any means
or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the
payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the
FCPA; and the Guarantor, its subsidiaries and, to the knowledge of
the Guarantor, its affiliates, have conducted their businesses 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.
(m) Each of the Guarantor and the
Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation and has all power and authority (corporate and other)
necessary to own or hold its material properties and to conduct its
business substantially in the manner in which it presently conducts
such business.
(n) Each of the Guarantor and the
Company has all corporate power and authority necessary to execute
and deliver this Agreement and to perform its obligations
hereunder; the execution, delivery and performance of this
Agreement and the terms of the Securities as established in the
Guarantor’s and the Company’s Articles of
Incorporation, as amended to the Closing Date, and compliance with
the provisions hereof and thereof by the Guarantor and the Company
will not constitute a breach of, or default under, (x) the
corporate charter or by-laws of the Guarantor and the Company,
(y) any material agreement, indenture or other instrument
relating to indebtedness for money borrowed to which the Guarantor
or the Company is a party, or (z) to the best of the
Guarantor’s and Company’s knowledge, any law, order,
rule, regulation or decree of any court, governmental agency or
authority located in the United States having jurisdiction over the
Guarantor or the Company or any property of the Guarantor or the
Company, which breach or default, in case of (y) and (z),
would be reasonably likely to have a material adverse effect on the
Guarantor and its subsidiaries taken as a whole; and no consent,
authorization or order of, or filing or registration with, any
court or governmental agency or authority is required for the
execution, delivery and performance of this Agreement by the
Guarantor or the Company except such as have been made or obtained
or will be made or obtained on or before the Closing Date and
except such as may be required under applicable state securities or
“blue sky” laws.
(o) The Securities being delivered
to the Underwriters at the Closing Date conform in all material
respects to the descriptions thereof in the Pricing Disclosure
Package and the Final Prospectus, have been duly authorized and,
when issued and delivered against payment therefor as provided in
this Agreement, will be duly and validly issued.
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(p) The operations of the Guarantor
and its subsidiaries are and have been conducted at all times in
compliance with applicable financial recordkeeping and reporting
requirements and the money laundering statutes and 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 Guarantor or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the best
knowledge of the Guarantor, threatened.
(q) Neither the Guarantor nor any of
its subsidiaries nor, to the knowledge of the Guarantor, any
director, officer, agent, employee or affiliate of the Guarantor or
any of its subsidiaries is currently subject to any sanctions
administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“ OFAC ”); and the
Guarantor 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.
(r) The Guarantor maintains a system
of 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 Guarantor’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. As of the date of the Guarantor’s most recent
audited balance sheet, the Guarantor’s internal control over
financial reporting was effective and the Guarantor is not aware of
any material weaknesses in its internal control over financial
reporting.
(s) Except for changes in internal
control over financial reporting in connection with the integration
of National City’s internal control policies into the
Guarantor’s internal control policies, since the date of the
latest audited financial statements included or incorporated by
reference in the Final Prospectus, there has been no change in the
Guarantor’s internal control over financial reporting that
has materially affected, or is reasonably likely to materially
affect, the Guarantor’s internal control over financial
reporting.
(t) The Guarantor 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; such disclosure controls and procedures have
been designed to ensure that material information relating to the
Guarantor and its subsidiaries is made known to the
Guarantor’s principal executive officer
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and principal financial officer by
others within those entities; and such disclosure controls and
procedures were effective as of date of the Guarantor’s most
recent audited balance sheet.
(u) The Guarantor has an authorized
capitalization as set forth in the Registration Statement, the
Pricing Disclosure Package and the Final Prospectus; all the
outstanding shares of capital stock of the Guarantor have been duly
and validly authorized and issued and are fully paid and
non-assessable; and all the outstanding shares of capital stock or
other equity interests of PNC Bank, National Association, (“
PNC Bank ”) and National City Bank (“
National City Bank ”) owned, directly or indirectly,
by the Guarantor have been duly and validly authorized and issued,
are fully paid and (except as provided in 12 U.S.C. § 55)
non-assessable and are owned directly or indirectly by the
Guarantor, free and clear of any lien, charge, encumbrance,
security interest, restriction on voting or transfer or any other
claim of any third party.
(v) Except as described in the
Registration Statement, the Pricing Disclosure Package and the
Final Prospectus, there are no legal, governmental or regulatory
investigations, actions, suits or proceedings pending to which the
Guarantor or any of its subsidiaries is a party or to which any
property of the Guarantor or any of its subsidiaries is the subject
that, individually or in the aggregate would reasonably be expected
to have a material adverse effect upon the business, condition or
properties of the Guarantor and its subsidiaries, taken as a whole;
except as described in the Registration Statement, the Pricing
Disclosure Package and the Final Prospectus, no such
investigations, actions, suits or proceedings are threatened or, to
the knowledge of the Guarantor, contemplated by any governmental or
regulatory authority or threatened by others; and (i) there
are no current or pending legal, governmental or regulatory
actions, suits or proceedings that are required under the Act to be
described in the Registration Statement, the Pricing Disclosure
Package or the Final Prospectus that are not so described in the
Registration Statement, the Pricing Disclosure Package and the
Final Prospectus and (ii) there are no contracts or other
documents that are required under the Act to be filed as exhibits
to the Registration Statement or described in the Registration
Statement, the Pricing Disclosure Package or the Final Prospectus
that are not so filed as exhibits to the Registration Statement or
described in the Registration Statement, the Pricing Disclosure
Package and the Final Prospectus.
(w) The Company acknowledges that in
accordance with the requirements of the USA Patriot Act (Title III
of Pub. L. 107-56 (signed into law October 26, 2001)), the
underwriters are required to obtain, verify and record information
that identifies their respective clients, including the Company,
which information may include the name and address of their
respective clients, as well as other information that will allow
the underwriters to properly identify their respective
clients.
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Section 2. Purchase and
Sale . Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company
agrees to, and the Guarantor agrees to cause the Company to, issue
and sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the
purchase price set forth in Schedule I hereto the principal amount
of the Securities set forth opposite such Underwriter’s name
in Schedule II hereto.
Section 3. Delivery and
Payment . Delivery of and payment for the Securities shall be
made on the date and at the time specified in Schedule I hereto (or
such later date not later than five business days after such
specified date as the Representatives shall designate), which date
and time may be postponed by agreement among the Representatives,
the Company and the Guarantor or as provided in Section 8
hereof (such date and time of delivery and payment for the
Securities being herein called the “ Closing Date
”). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the
order of the Company by wire transfer of immediately available
funds. Delivery of the Securities shall be made at such location in
The City of New York as the Representatives shall reasonably
designate at least one business day in advance of the Closing Date
and payment for the Securities shall be made at the office
specified in Schedule I hereto. Certificates for the Securities
shall be registered in such names (including the nominee for any
depositary which will hold Securities to be established for
“book entry” issuance and transfer) and in such
denominations as the Representatives may request not less than two
full business days in advance of the Closing Date.
The Company and the Guarantor agree
to have the Securities available for inspection, checking and
packaging by the Representatives in New York, New York, not later
than 1 p.m. on the business day prior to the Closing
Date.
Section 4. Agreements .
The Company and the Guarantor jointly and severally agree with the
several Underwriters that:
(a) Prior to the termination of the
offering of the Securities, the Company and the Guarantor will not
file any amendment to the Registration Statement or supplement
(including the Final Prospectus or any Preliminary Final
Prospectus) to the Basic Prospectus unless the Company and the
Guarantor have furnished you a copy for your review prior to filing
and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, the
Company and the Guarantor will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed; will prepare a final term sheet,
containing solely a description of the Securities in a form
approved by you and will file such term sheet pursuant to
Rule 433(d) within the time period prescribed; will promptly
file all other material required to be filed by the Company and the
Guarantor with the Commission pursuant to Rule 433(d) and will
provide evidence satisfactory to the Representatives of such timely
filing. The Company and the Guarantor will
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promptly advise the Representatives
(i) when the Registration Statement, if not effective at the
Execution Time, and any amendment thereto, shall have become
effective, (ii) when the Final Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to
Rule 424(b), (iii) when any Issuer Free Writing
Prospectus shall have been filed with the Commission,
(iv) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have
been filed or become effective, (v) of any request by the
Commission for any amendment of the Registration Statement or
supplement to the Final Prospectus or for any additional
information, (vi) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for
that purpose and (vii) of the receipt by the Company or the
Guarantor of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The
Company and the Guarantor will use their best efforts to prevent
the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a
prospectus relating to the Securities is required to be delivered
(or in lieu thereof, the notice referred to in Rule 173(a) under
the Act) under the Act, any event occurs as a result of which the
Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or
supplement the Final Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company and
the Guarantor promptly will advise the Underwriters of the
happening of such event and prepare and file with the Commission,
at the Company’s and the Guarantor’s expense, subject
to the first sentence of paragraph (a) of this Section 4,
an amendment or supplement which will correct such statement or
omission or effect such compliance.
(c) As soon as practicable, the
Guarantor will make generally available to its security holders and
to the Representatives an earnings statement or statements of the
Guarantor and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company and the Guarantor
will furnish to the Representatives and counsel for the
Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act,
as many copies of any Preliminary Final Prospectus, the Final
Prospectus and each Issuer Free Writing Prospectus and any
supplement thereto as the Representatives may reasonably request.
The Company and the Guarantor will pay the expenses of printing or
other production of all documents relating to the
offering.
11
(e) The Company and the Guarantor
will use their best efforts to arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities
and will arrange for the determination of the legality of the
Securities for purchase by institutional investors; provided
, however , that neither the Company nor the Guarantor shall
be required to qualify to do business in any jurisdiction where it
is not now qualified or to take any action which would subject it
to general or unlimited service of process in any jurisdiction
where they are not now subject.
(f) Until the business day following
the Closing Date, the Company and the Guarantor will not, without
the consent of the Representatives, offer, sell or contract to
sell, or announce the offering of, any debt securities covered by
the Registration Statement or any other registration statement
filed under the Act.
(g) Whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is
terminated, the Company and the Guarantor will pay or cause to be
paid all expenses, fees and taxes incident to the performance of
their obligations under this Agreement, including, without
limitation: (i) the fees, disbursements and expenses of their
counsel and the accountants in connection with the issuance and
sale of the Securities and all other fees or expenses in connection
with the preparation of the Preliminary Final Prospectus, the
Pricing Disclosure Package, the Final Prospectus, any Issuer Free
Writing Prospectuses prepared by or on behalf of, used by, or
referred to by them and any amendments and supplements to any of
the foregoing, including all printing costs associated therewith,
and the delivering of copies thereof to the Underwriters and to
dealers (including costs of mailing and shipment), (ii) all
costs and expenses related to the transfer and delivery of the
Securities to the Underwriters, including any transfer or other
taxes payable thereon, (iii) any fees charged by rating
agencies for the rating of the Securities, (iv) the fees and
expenses, if any, incurred in connection with the admission of the
Securities in any appropriate stock exchange or market system,
(v) the costs and charges
